SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
May 20, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Adam Seiden, J.), rendered February 23, 2010.
People v Zherka (Selim)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 20, 2011
PRESENT: TANENBAUM, J.P., LaCAVA and IANNACCI, JJ
The judgment convicted defendant, after a non-jury trial, of two counts of disorderly conduct.
ORDERED that the judgment of conviction is affirmed.
Defendant was convicted, after a non-jury trial, of two counts of disorderly conduct (Penal Law § 240.20 , ). Defendant's contention that the evidence was legally insufficient to support the conviction is not preserved for appellate review (see People v Gray, 86 NY2d 10 ; People v Montana, 298 AD2d 934 ). In any event, we are of the opinion that the evidence, when viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 ), was legally sufficient to establish that defendant recklessly created a risk of public inconvenience, annoyance or alarm by making unreasonable noise (Penal Law § 240.20 ) and by using abusive language (Penal Law § 240.20 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we accord great deference to the factfinder's opportunity at the trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888 ). The City Court accepted the version of the events proffered by the People's witnesses, and we see no basis in the record to disturb the verdict.
Defendant argues that the City Court improvidently exercised its discretion in excluding from evidence an alleged recording of the incident made by defendant, which defendant's attorney had sought to introduce during defendant's testimony in order to demonstrate that the complaining witness had lied during her testimony. It is undisputed that the People had repeatedly requested discovery of the recording pursuant to CPL 240.30 (1) (b), and that defendant's attorney had consistently refused to turn it over, stating that he did not intend to introduce the tape. The preclusion of evidence is permissible for failure to produce discoverable evidence, and the appropriate sanction to be imposed is within the sound discretion of the trial court (see People v Jenkins, 98 NY2d 280, 284 ). Under the circumstances, we find that the City Court's preclusion of the recording was not an improvident exercise of discretion.
Accordingly, the judgment of conviction is affirmed.
Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: May 20, 2011
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