People v. Thomas

• Decision Date: 16 November 1998
• Citation: 682 N.Y.S.2d 219,255 A.D.2d 467
• Parties: 1998 N.Y. Slip Op. 10,401 The PEOPLE, etc., Respondent, v. Maurice THOMAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 219

682 N.Y.S.2d 219

1998 N.Y. Slip Op. 10,401

The PEOPLE, etc., Respondent, v. Maurice THOMAS, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 16, 1998.

Leon H. Tracy, Forest Hills, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill and Traci R. Turner of counsel), for respondent.

ROSENBLATT, J.P., MILLER, THOMPSON and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered October 7, 1996, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it is legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 68 N.E. 112). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).

We find no merit to the defendant's Rosario claim regarding a missing tape of a telephone call to the 911 emergency number. The tape was not a written or recorded statement made by a witness called at trial, and therefore did not constitute Rosario material (see, CPL 240.45[1]; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64; People v. Williams, 229 A.D.2d 603, 604, 646 N.Y.S.2d 142). Moreover, although the defense did not receive a police officer's handwritten report until after the opening statements were completed, the defense counsel conceded that there was no bad faith on the part of the prosecutor and failed to show any prejudice to the defendant (see, People v. Banch, 80 N.Y.2d 610, 593 N.Y.S.2d 491, 608 N.E.2d 1069; People v. Brister, 239 A.D.2d 513, 514, 658...