People v Winter

People v Winter 2008 NY Slip Op 04789 [51 AD3d 599] May 29, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 16, 2008

The People of the State of New York, Respondent,
v
Elvis Winter, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Stacy Kaplan of counsel), for respondent.

Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered January 19, 2001, convicting defendant, after a jury trial, of assault in the first degree and tampering with a witness in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 11 years and 3½ to 7 years, respectively, 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 credibility. Although no witness saw defendant holding a sharp object, the evidence supports the conclusion that it was defendant who cut the victim.

The court properly declined to modify its Sandoval ruling following the prosecutor's opening statement. Defendant does not challenge the original ruling itself, and there was nothing in the prosecutor's opening that would require the court to provide a more favorable ruling. Moreover, the court struck the allegedly prejudicial portion of the opening, with a curative instruction that the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]). Concur—Friedman, J.P., Williams, Catterson and Acosta, JJ.