People v Kennedy

People v Kennedy 2015 NY Slip Op 09204 Decided on December 15, 2015 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 December 15, 2015
Tom, J.P., Sweeny, Renwick, Manzanet-Daniels, JJ.
16397 570277/13 14326/11

[*1] The People of the State of New York, Respondent, Docket

v

Timothy Kennedy, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered December 17, 2012, convicting defendant, after a nonjury trial, of attempted criminal mischief in the fourth degree, and sentencing him to a conditional discharge, 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 court's credibility determinations. As factfinder, the court was entitled to accept those portions of a witness's testimony it found to be reliable and reject other portions. Moreover, contrary to defendant's assertion, material aspects of this witness's testimony were corroborated by that of a police officer.

Defendant did not preserve his claim that the court provided inadequate remedies for certain violations of the People's disclosure obligations, and we decline to review it in the interest of justice. As an alternative holding, we find that an adverse inference sanction was sufficient to prevent any prejudice under the circumstances (see generally People v Martinez, 71 NY2d 937, 940 [1988]). We have considered and rejected defendant's related ineffective assistance of counsel claim.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2015

CLERK