People v. Marte

GONZALEZ

Stanley Neustadter, Cardozo Appeals Clinic, New York (Peter Adelman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
GONZALEZ, P.J., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered October 30, 2009, convicting defendant, after a jury trial, of assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of five years, unanimously affirmed.

The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The victim's identification of defendant as the person who shot him was corroborated by several aspects of a surveillance camera recording, including the sound of people shouting defendant's name immediately before shots were fired.

The court properly permitted the victim to testify, on cross-examination, that he decided to provide an accurate identification of his assailant once the police showed him pictures of various people. The answer was responsive to an inquiry by defense counsel into the victim's reason for belatedly telling the truth. Although testimony about photo identifications is generally inadmissible, here “defendant opened the door to such testimony and actually elicited it during cross-examination” ( People v. Hernandez, 286 A.D.2d 623, 623, 730 N.Y.S.2d 229 [1st Dept.2001], lv. denied97 N.Y.2d 682, 738 N.Y.S.2d 298, 764 N.E.2d 402 [2001] ). Accordingly, the court properly declined to interrupt the witness's answer or declare a mistrial.