PEOPLE v. WIENER

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis to disturb the jury's determinations concerning credibility. There was ample evidence of defendant's guilt of assault under a depraved indifference theory (Penal Law § 120.10[3]). The evidence permitted a reasonable inference that when defendant struck the victim he did so with knowledge of the fact that she was sitting precariously on the ledge of an airshaft.

The court properly exercised its discretion in denying defendant's application to preclude the People from calling alibi rebuttal witnesses, made on the ground that the People's alibi rebuttal notice was untimely (see, CPL 250.20[2],[3],[4]). Defendant did not avail himself of his statutory right to an adjournment, and his claim of incurable prejudice is not established. We also note that the circumstances of the delay in providing notice were not unreasonable.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.