People v Petikas (Nicholas)

[*1] People v Petikas (Nicholas) 2010 NY Slip Op 51065(U) [27 Misc 3d 143(A)] Decided on June 14, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2006-568 N CR.

The People of the State of New York, Respondent,

against

Nicholas Petikas, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Dana Mitchell Jaffe, J.), rendered March 24, 2006. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated per se.

ORDERED that the judgment of conviction is affirmed.

Following a jury trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]). It is well settled that the credibility of witnesses is a question of fact, and the resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is for the trier of fact, which had the opportunity to see and hear the witnesses (see People v Romero, 7 NY3d 633 [2006]). The determination of the trier of fact should be afforded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Mateo, 2 NY3d 383, 410 [2004]).

Contrary to defendant's contention, the District Court properly allowed the People to read portions of defendant's testimony at a prior trial into evidence at his re-trial as an admission (see People v King, 158 AD2d 471 [1990]; see also People v Caban, 5 NY3d 143, 151 n [2005]). Moreover, it is well settled that evidentiary rulings made at one trial are not binding in a subsequent trial (see People v Malizia, 62 NY2d 755 [1984]). Thus, while defendant correctly contends that the court erred in overruling his secondary objection to the prosecutor's reading into evidence certain portions of the prior trial testimony on the ground that the objection had not been made at the prior trial, nevertheless, the objected-to prior testimony was properly read into the record since a prosecutor is entitled to ask a defendant whether the People's witnesses had been mistaken where, as here, the defendant's testimony is in direct conflict with that of the [*2]People's witnesses (see People v Hill, 47 AD3d 838, 839 [2008]; see also People v Overlee, 236 AD2d 133, 139 [1997]).

Two of defendant's contentions regarding the prosecutor's comments during summation are unpreserved for appellate review, as no objections were made thereto at trial (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). With respect to those contentions regarding the prosecutor's comments during summation which were preserved, to the extent that they may constitute error, we find that they do not warrant reversal under the circumstances herein (see e.g. People v Langert, 105 AD2d 845, 846 [1984]). Defendant's remaining contentions also lack merit or are unpreserved for appellate review.

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: June 14, 2010