People v. Desire
| Decision Date | 30 September 1985 |
| Citation | 493 N.Y.S.2d 849,113 A.D.2d 952 |
| Parties | The PEOPLE, etc., Respondent, v. Ernest DESIRE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ernest Desire, pro se.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Janet M. Berk and Karen M. Wigle of counsel), for respondent.
Before LAZER, J.P., and MANGANO, GIBBONS and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
By order dated August 2, 1982, this court affirmed a judgment of the Supreme Court, Kings County, rendered June 2, 1980, convicting defendant of murder in the second degree and robbery in the first degree (five counts), upon a jury verdict, and imposing sentence (People v. Desire, 89 A.D.2d 936, 452 N.Y.S.2d 972). By order dated March 2, 1984, this court granted defendant's motion for reargument of his appeal and for leave to file a pro se supplemental brief. Defendant's brief has now been filed and the People have responded thereto.
Upon reargument, original determination adhered to.
Our review of the record establishes that the identification testimony adduced at trial was sufficient as a matter of law to sustain defendant's conviction. Moreover, the trial court properly exercised its discretion by permitting codefendant's counsel to recall an eyewitness to re-open cross-examination based upon counsel's offer of material and relevant proof (see, People v. Ventura, 35 N.Y.2d 654, 360 N.Y.S.2d 419, 318 N.E.2d 609).
Defendant's remaining contentions are not preserved for appellate review. In any event, were we to consider these claims in the interest of justice, we would find that they are without merit.
Accordingly, upon reargument, we adhere to our original determination.
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