People v. Smith

• Decision Date: 20 December 2011
• Citation: 2011 N.Y. Slip Op. 09203,90 A.D.3d 561,936 N.Y.S.2d 135
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank SMITH, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09203
90 A.D.3d 561
936 N.Y.S.2d 135

The PEOPLE of the State of New York, Respondent,
v.
Frank SMITH, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 20, 2011.

[936 N.Y.S.2d 136]

Richard M. Greenberg, Office of the Appellate Defender, New York (Rebekah J. Pazmiño of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), for respondent.

SAXE, J.P., CATTERSON, MOSKOWITZ, ACOSTA, RENWICK, JJ.

Judgment, Supreme Court, New York County (John Cataldo, J.), rendered November 9, 2009, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 12 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, including its resolution of alleged inconsistencies in testimony. The court properly exercised its discretion in declining to permit defendant to recall the victim for further cross-examination. Defendant sought to recall the victim to lay a foundation for an allegedly inconsistent statement that the victim made to defendant's cousin shortly after the crime. Defense counsel could have elicited the alleged inconsistency on cross-examination, and bringing back the victim and then the cousin for additional testimony would have delayed the trial. The alleged inconsistency had very limited probative value, and it was cumulative to other impeachment material ( see People v. Crawford, 39 A.D.3d 426, 427, 834 N.Y.S.2d 170 [2007], lv. denied 9 N.Y.3d 864, 840 N.Y.S.2d 893, 872 N.E.2d 1199 [2007] ).

Accordingly, there was no violation of defendant's right to confront witnesses and present a defense ( see Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986]; Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986] ). In any event, any error in declining to permit defendant to recall the victim was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

Defendant also claims his trial counsel rendered ineffective assistance by failing to lay a foundation for the alleged inconsistent statement. However, given the minimal impeachment value of the alleged inconsistency, defendant has not satisfied the prejudice...