People v Doumbia

People v Doumbia 2010 NY Slip Op 05870 [75 AD3d 422] July 1, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2010

The People of the State of New York, Respondent,
v
Modibo Doumbia, Appellant.

—[*1] Goldberg & Kaplan, LLP, New York (Brian Kaplan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered July 16, 2009, as amended August 14, 2009, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility. The testimony of the victim and other witnesses clearly established the extent of the victim's injuries, and that they were inflicted by defendant.

Defendant did not preserve his claim that the prosecutor violated the court's Sandoval ruling, or his related claim regarding rebuttal evidence, and we decline to review them in the interest of justice. As an alternative holding, we find that defendant opened the door to the cross-examination and rebuttal evidence at issue (see People v Fardan, 82 NY2d 638, 646 [1993]; People v Melendez, 55 NY2d 445, 451-452 [1982]).

Since defendant received the minimum sentence permitted by law, and there is no "legally authorized lesser sentence," this Court has no authority to reduce the sentence as a matter of discretion in the interest of justice (CPL 470.20 [6]). Concur—Mazzarelli, J.P., Renwick, Freedman, Richter and Abdus-Salaam, JJ.