People v Leonard (Robert)

[*1] People v Leonard (Robert) 2006 NY Slip Op 51203(U) [12 Misc 3d 135(A)] Decided on June 27, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: GOLIA, J.P., RIOS and BELEN, JJ
2004-1665 Q CR.

The People of the State of New York, Respondent,

against

Robert Leonard, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph A. Zayas, J.), rendered on July 27, 2004. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the fourth degree.

Judgment of conviction affirmed.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of criminal mischief in the fourth degree (Penal Law § 145.00 [1]) beyond a reasonable doubt. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see CPL 470.15 [5]). Although defendant presented an alibi witness, the jury was not bound to accept her testimony as it merely served to raise an issue of credibility which the jury resolved in favor of the prosecution (see People v Terrill, 265 AD2d 587 [1999]). The determination of the jury, which saw and heard the witnesses, should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Gaimari, 176 NY 84 [1903]; People v Garafolo, 44 AD2d 86, 88 [1974]).

Contrary to defendant's contention, a defense witness was properly precluded from testifying at trial to the effect that defendant's daughter, the complainant, was served with an order of protection since such testimony was offered solely to impeach the credibility of the complainant (see People v Inniss, 83 NY2d 653 [1994]; People v Alexander, 16 AD3d 515 [2005]). The issue that the process server's testimony was offered to show complainant's bias, hostility or a reason to fabricate was raised for the first time on appeal and is unpreserved for appellate review (CPL 470.05 [2]; see Inniss, 83 NY2d at 658). Furthermore, the court properly precluded the testimony of the complainant's neighbor regarding unrelated acts of vandalism [*2]which allegedly occurred in the neighborhood since such testimony would have been hearsay (see People v Otero, 288 AD2d 67 [2001]), merely speculative and lacking in probative value (see People v Primo, 96 NY2d 351, 355 [2001]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: June 27, 2006