SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
March 20, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ROOSEVELT APPLETON, DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Erie County (Timothy J. Drury, J.), rendered June 27, 2007. The judgment convicted defendant, upon a jury verdict, of reckless endangerment in the first degree, assault in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND GREEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him following a jury trial of, inter alia, reckless endangerment in the first degree (Penal Law § 120.25) and assault in the second degree (§ 120.05 ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of reckless endangerment and assault (see People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect to those counts is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Defendant also failed to preserve for our review his contentions that he was denied a fair trial by the improper bolstering of the victim's identification (see People v Simms, 244 AD2d 920, lv denied 91 NY2d 897), that Supreme Court erred in admitting in evidence photographs of the victim's vehicle (see People v Craven, 48 AD3d 1183, 1184-1185, lv denied 10 NY3d 861), and that the court further erred in permitting the jurors to take notes without proper instructions (see People v Green, 35 AD3d 1197, lv denied 8 NY3d 922). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15  [a]).
The court properly denied defendant's motion to set aside the verdict pursuant to CPL 330.30 (3). The newly discovered evidence proffered in support of such a motion must be "of such nature that a different verdict probably would occur and, further, such [evidence] must not be cumulative or merely impeaching or contradicting of the trial evidence . . . Here, the proffered evidence does not create the probability of a different result if a new trial were granted and clearly constitutes evidence contradictory to certain of the trial evidence, thus tending to impeach the testimony of a trial witness" (People v Hayes, 295 AD2d 751, 752, lv denied 98 NY2d 730). Finally, we reject the contentions of defendant that he was denied effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147), and that he was denied a fair trial by the cumulative effect of the alleged errors raised by defendant on appeal (see People v McKnight, 55 AD3d 1315, 1317).
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