PEOPLE v. ROSARIO

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

The PEOPLE of the State of New York, Respondent, v. Alex ROSARIO, Defendant–Appellant.

172

Decided: February 08, 2019

PRESENT:  WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law § 120.10 [1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ).  We reject defendant's contention that he received ineffective assistance of counsel.  Here, because the victim identified defendant at trial and testified that he knew defendant prior to the incident, defense counsel was not ineffective in failing to call an expert witness to testify about the reliability of eyewitness identifications (see People v. Smith, 128 A.D.3d 1434, 1435, 8 N.Y.S.3d 777 [4th Dept. 2015], lv denied 26 N.Y.3d 1011, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015];  People v. Smith, 118 A.D.3d 1492, 1493, 988 N.Y.S.2d 819 [4th Dept. 2014], lv denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 [2015];  People v. Faison, 113 A.D.3d 1135, 1136, 977 N.Y.S.2d 862 [4th Dept. 2014], lv denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).  Finally, the sentence is not unduly harsh or severe.