People v Martinez

People v Martinez 2012 NY Slip Op 01369 Decided on February 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2012
Tom, J.P., Friedman, Sweeny, Moskowitz, DeGrasse, JJ.
6899

[*1]The People of the State of New York, 16248C/05 Respondent,

v

Francisco Martinez, Defendant-Appellant.




Cardozo Criminal Appeals Clinic, New York (Stanley
Neustadter of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (T. Charles Won of
counsel), for respondent.

Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered October 21, 2008, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second violent felony offender, to a term of 17 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning the credibility and reliability of witnesses, and its rejection of defendant's third-party-culpability defense.

The court properly exercised its discretion in receiving rebuttal evidence concerning the type of baseball bat used during the incident by the person claimed by defendant to be the actual perpetrator (see e.g. People v Harrington, 262 AD2d 220 [1999], lv denied, 94 NY2d 823 [1999]). Under the circumstances, the nature of the instrument was material to the case.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK