People v. Smith

• Decision Date: 04 June 2019
• Docket Number: Ind. 3043/12,9523
• Citation: 102 N.Y.S.3d 569,173 A.D.3d 414
• Parties: The PEOPLE of the State of New York, Respondent, v. Osmondo SMITH, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 414

102 N.Y.S.3d 569

The PEOPLE of the State of New York, Respondent,

v.Osmondo SMITH, Defendant–Appellant.

9523

Ind. 3043/12

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

ENTERED: JUNE 4, 2019

Christina A. Swarns, Office of the Appellate Defender, New York (Caitlin Glass of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.

Acosta, P.J., Richter, Kapnick, Kahn, Kern, JJ.

Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered November 12, 2016, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The initial reluctance of the eyewitnesses to provide defendant's name was satisfactorily explained, and their testimony was corroborated by other evidence. Defendant's arguments concerning matters not presented to the jury is unavailing, because "[o]ur review of the ... weight of the evidence is limited to the evidence actually introduced at trial" ( People v. Dukes, 284 A.D.2d 236, 236, 726 N.Y.S.2d 554 [1st Dept. 2001], lv denied 97 N.Y.2d 681, 738 N.Y.S.2d 296, 764 N.E.2d 400 [2001] ).

The court properly admitted two 911 calls as excited utterances. Defendant did not preserve his claim that the calls should have been excluded on the ground that the callers did not indicate that they had seen the crime, and we decline to review it in the interest of justice. As an alternative holding, we find that it was inferable from the circumstances that the callers had the opportunity to observe personally what they described to the 911 operator (see generally People v. Cummings, 31 N.Y.3d 204, 209–210, 75 N.Y.S.3d 484, 99 N.E.3d 877 [2018] ). In any event, all the information in the calls was cumulative to other evidence.

Defendant's arguments regarding a photo identification are without merit. The witness knew defendant for several years and gave the police a shortened form of his first name. The use of photographs was solely for the purpose of finding the person the witness had already named. While the truthfulness of her accusation of defendant was at issue, "suggestiveness" was not a concern (see People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399...