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The People of the State of New York v. Osiris Marte

New York Supreme and/or Appellate Courts Appellate Division, First Department


October 4, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
OSIRIS MARTE,
DEFENDANT-APPELLANT.

People v Marte

Decided on October 4, 2012

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.

Gonzalez, P.J., Saxe, DeGrasse, Freedman, Roman, JJ.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered October 30, 2009, convicting defendant, after a jury trial, of assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of five years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations. The victim's identification of defendant as the person who shot him was corroborated by several aspects of a surveillance camera recording, including the sound of people shouting defendant's name immediately before shots were fired.

The court properly permitted the victim to testify, on cross-examination, that he decided to provide an accurate identification of his assailant once the police showed him pictures of various people. The answer was responsive to an inquiry by defense counsel into the victim's reason for belatedly telling the truth. Although testimony about photo identifications is generally inadmissible, here "defendant opened the door to such testimony and actually elicited it during cross-examination" (People v Hernandez, 286 AD2d 623, 623 [1st Dept 2001], lv denied 97 NY2d 682 [2001]). Accordingly, the court properly declined to interrupt the witness's answer or declare a mistrial.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 4, 2012

CLERK

20121004

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