People v DeSusa

People v DeSusa 2017 NY Slip Op 04802 Decided on June 13, 2017 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 June 13, 2017
Friedman, J.P., Mazzarelli, Moskowitz, Gische, Gesmer, JJ.
4261 420/11

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

v

Donald DeSusa, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Kramer Levin Naftalis & Frankel, New York (Evie Spanos of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Robert McIver of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J. at mistrial declaration; Seth L. Marvin, J. at jury trial and sentencing), rendered December 16, 2013, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 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 credibility determinations. It does not avail defendant to rely on statements made at arraignment and hearing testimony that were not adduced at trial (see People v Dukes, 284 AD2d 236 [1st Dept 2001], lv denied 97 NY2d 681 [2001]).

The court properly exercised its discretion in declaring a mistrial sua sponte before the completion of jury selection, over both parties' objections, because of a scheduling problem that was unavoidable given the information available to the court at the time (see People v Chandler, 30 AD3d 161 [1st Dept 2006], lv denied 7 NY3d 786 [2006]).

Defendant's challenge to a jury charge to the effect that the People were not obligated to present certain kinds of evidence is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see People v Jiovani, 258 AD2d 277 [1st Dept 1999], lv denied 93 NY2d 900 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 13, 2017

CLERK