People v Marshall (Kaity)

[*1] People v Marshall (Kaity) 2014 NY Slip Op 50215(U) Decided on February 7, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ
2011—999 K CR.

The People of the State of New York, Respondent,

against

Kaity Marshall, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Shari Ruth Michels, J., at pretrial hearing; Geraldine Pickett, J., at trial and sentence), rendered February 24, 2011. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree, attempted criminal possession of a weapon in the fourth degree, menacing in the third degree and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110.00, 265.01 [2]), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.26 [1]). Her conviction arises from an incident that occurred on July 3, 2008 in which she is alleged to have repeatedly punched another woman in the head during an altercation on a New York City bus.

The Criminal Court (Shari Ruth Michels, J.) correctly determined, after a hearing, that the prosecutor's showing of a photograph to the victim constituted trial preparation (see People v Herner, 85 NY2d 877, 879 [1995]; People v Williams, 8 AD3d 74, 75 [2004]; People v Randolph, 232 AD2d 327 [1996]). The prosecutor had been assigned to the case the day before he met with the victim. Moreover, the victim was unable to identify the person depicted in the photograph, which the victim described as blurry and not clear (see People v Griffin, 305 AD2d 992 [2003]; cf. People v Thornton, 236 AD2d 430, 430-431 [1997]). In any event, even if the victim had identified the person depicted in the photograph as defendant, because the victim had previously identified defendant upon defendant's arrest, the photographic identification would not have tainted her in-court identification of defendant (see People v Jerold, 278 AD2d 804 [2000]; People v Morales, 248 AD2d 173 [1998]). Defendant's contention that the court should have permitted her to call, as a witness at the hearing, the prosecutor who at the time was assigned to the case is without merit (see People v Delarosa, 84 AD3d 832, 834 [2011]; People v Carey, 67 AD3d 925, 926 [2009]; People v Alexander, 16 AD3d 515, 516 [2005]; People v Schaefer, 302 AD2d 333, 333-334 [2003]; cf. People v Barton, 164 AD2d 917, 918 [1990]; People v Sokolyansky, 147 AD2d 722, 723 [1989]).

Upon the exercise of our factual review power, we are satisfied that the verdict of guilty of the Criminal Court (Geraldine Pickett, J.) was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d 490, 495 [*2][1987]). The People's witnesses and defendant's witnesses, including defendant herself, testified to different accounts of the incident, and defendant presented an alibi defense. The evidence thus presented an issue of credibility. Resolution of credibility issues, 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, and observe their demeanor (see People v Romero, 7 NY3d 633 [2006]; People v Bleakley, 69 NY2d at 495). 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 Romero, 7 NY3d at 644-645; People v Cruz, 50 AD3d 914 [2008]; People v Aalaam, 40 Misc 3d 131[A], 2013 NY Slip Op 51129[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). In our view, the determination of the trier of fact was clearly supported by the record.

Defendant's claim that the prosecutor failed to lay a proper foundation for the cross-examination of defendant's mother, who testified as an alibi witness, regarding defendant's mother's failure to inform law enforcement officials of allegedly exculpatory evidence (see People v Dawson, 50 NY2d 311, 321, n 4 [1980]), is unpreserved for appellate review (see CPL 470.05 [2]; People v Miller, 89 NY2d 1077, 1079 [1997]; People v Peters, 98 AD3d 587, 589 [2012]; People v Trinidad, 57 AD3d 219 [2008]; People v McGee, 17 AD3d 485, 486 [2005]; People v Jackson, 214 AD2d 475, 476 [1995]; People v Holder, 203 AD2d 382, 383 [1994]; People v Martinez, 153 AD2d 957, 957-958 [1989]; People v Wilson, 105 AD2d 815 [1984]) and we decline to review the issue in the interest of justice (cf. People v Shelton, 98 AD3d 988, 988-989, 991-992 [2012]; People v Figueroa, 181 AD2d 690, 691 [1992]; People v Beaulieu, 184 AD2d 1061 [1992]).

Accordingly, the judgment of conviction is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014