Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered November 23, 2009. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.
KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.
RICKIE R. SCOTT, DEFENDANT-APPELLANT PRO SE.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 ), criminal possession of a weapon in the second degree (§ 265.03  [b]), and criminal possession of a weapon in the third degree (§ 265.02  [ii]). We note at the outset that defendant's first trial ended in a mistrial for reasons not relevant herein. With respect to the merits, we reject defendant's contention that Supreme Court's handling of the fourth jury note during deliberations warrants a new trial. Contrary to defendant's contention, the court did not err in refusing to include a supplemental instruction on identification in responding to the fourth jury note (see People v Allen, 69 N.Y.2d 915, 916; see also People v Cruz, 272 A.D.2d 922, 923, affd 96 N.Y.2d 857). "The court was not obligated to go beyond the jury's request for information" in the fourth jury note (People v Cosby, 82 A.D.3d 63, 69, lv denied 16 N.Y.3d 857), and we conclude that the court properly exercised its discretion in formulating a response to that note (see generally People v Santi, 3 N.Y.3d 234, 248). Defendant failed to preserve for our review his contention that the court erred in failing to allow the jury to clarify its request with respect to the fourth jury note (see CPL 470.05 ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15  [a]).
Defendant further contends in his main and pro se supplemental briefs that he is entitled to a new trial because the court erroneously denied his motion for a mistrial based on the fact that a witness who was unable to make a pretrial identification of defendant as the shooter thereafter identified him as the shooter at trial. We reject that contention. "[T]he decision to grant or deny a motion for a mistrial is within the trial court's discretion" (People v Ortiz, 54 N.Y.2d 288, 292; see People v Robinson, 309 A.D.2d 1228, 1228, lv denied 1 N.Y.3d 579), and we perceive no abuse of discretion here. The inability of a witness to identify a defendant during a pretrial procedure goes to the weight to be afforded that witness's identification testimony at trial, not its admissibility (see People v Grant, 94 A.D.3d 1139, 1140-1141, lv denied 20 N.Y.3d 1099; People v Gangler, 227 A.D.2d 946, 947-948, lv denied 88 N.Y.2d 985, reconsideration denied 89 N.Y.2d 922). Defendant also contends that he is entitled to a new trial because the court erred in denying his severance motion, but we conclude that the court "neither abused nor improvidently exercised its discretion in denying the motion for severance" (People v Sutton, 71 A.D.3d 1396, 1397, lv denied 15 N.Y.3d 778).
Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence (see generally People v Delamota, 18 N.Y.3d 107, 110; People v Bleakley, 69 N.Y.2d 490, 495). Moreover, viewing the evidence in light of the crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). "Where... witness credibility is of paramount importance to the determination of guilt or innocence, [we] must give [g]reat deference... [to the jury's] opportunity to view the witnesses, hear the testimony and observe demeanor" (People v Allen, 93 A.D.3d 1144, 1147, lv denied 19 N.Y.3d 956 [internal quotation marks omitted]). Defendant's further challenge to the legal sufficiency of the evidence at the first trial is properly before us inasmuch as "[t]he Double Jeopardy Clause precludes a second trial if the evidence from the first trial is determined by the reviewing court to be legally insufficient" (People v Scerbo, 74 A.D.3d 1730, 1731, lv denied 15 N.Y.3d 757). Nevertheless, we reject that contention. Viewing the evidence at the first trial in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621), we conclude that it is legally sufficient to support the conviction (see Allen, 93 A.D.3d at 1147; see generally Bleakley, 69 N.Y.2d at 495).
Defendant's contention in his main and pro se supplemental briefs that he was deprived of effective assistance of counsel based on defense counsel's failure to call a certain person as an alibi witness is based on matters outside the record on appeal, "and thus the proper procedural vehicle for raising that contention is by way of a motion pursuant to CPL 440.10" (People v Wittman, 103 A.D.3d 1206, 1206, lv denied21 N.Y.3d 915; see People v King, 90 A.D.3d 1533, 1534, lv denied18 N.Y.3d 959). To the extent that we are able to review defendant's contention that he was denied effective assistance of counsel based on the record before us, we conclude that ...