PEOPLE v. VARELA

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. William VARELA, Defendant-Appellant.

Decided: May 25, 2000

SULLIVAN, P.J., ROSENBERGER, WILLIAMS, WALLACH and FRIEDMAN, JJ. Yael V. Levy, for Respondent. Rosemary Herbert, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered February 26, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 22 years to life, unanimously affirmed.

 The verdict convicting defendant upon the testimony of five eyewitnesses and numerous corroborating witnesses was not against the weight of the evidence.   On the contrary, we find that the evidence was overwhelming.   Although defendant challenges the credibility of the prosecution witnesses on various grounds, these issues were properly presented to the jury and there is no basis upon which to disturb its findings.

 Defendant was not prejudiced when the prosecutor, without first establishing a lack of recollection, showed a defense witness a document and asked him if it refreshed his recollection.   The contents of the document were never revealed to the jury, the witness stated that the document would not change his testimony, and the court's charge at the end of the case, which the jury is presumed to have followed, instructed the jury to decide the case based only on the evidence.

 We perceive no abuse of sentencing discretion.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

MEMORANDUM DECISION.