People v. Bermudez

Mar 16, 2007
Versions:38 A.D.3d 1325
832 N.Y.S.2d 356

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered November 3, 2005. The judgment convicted defendant, after a nonjury trial, of assault in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Present—Scudder, P.J., Hurlbutt, Centra, Fahey and Green, JJ.

Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of assault in the first degree (Penal Law § 120.10 [1]). We agree with defendant that County Court erred in admitting evidence of an uncharged crime without conducting a Ventimiglia hearing. We conclude, however, that the error is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant failed to preserve for our review his contention that the People improperly impeached their own witness (see People v Picente, 35 AD3d 1210, 1211 [2006]; People v Willis, 303 AD2d 936 [2003], lv denied 100 NY2d 544 [2003]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject defendant‘s further contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The court‘s resolution of credibility issues is entitled to great deference, and it cannot be said that the court failed to give the evidence the weight it should be accorded (see People v Lane, 7 NY3d 888 [2006]; People v Britt, 298 AD2d 984 [2002], lv denied 99 NY2d 556 [2002]). Contrary to the further contention of defendant, he received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel “made appropriate and comprehensive pretrial motions, conducted pretrial hearings and examination of witnesses at the trial, [and] made timely and appropriate objections and attacks on the People‘s proof” (People v Fells, 279 AD2d 706, 711 [2001], lv denied 96 NY2d 758 [2001]), and defense counsel‘s decision not to call certain witnesses to testify was a matter of strategy (see People v Botting, 8 AD3d 1064, 1066 [2004], lv denied 3 NY3d 671 [2004]; see generally People v Rivera, 71 NY2d 705, 708-709 [1988]). Finally, the sentence is not unduly harsh or severe.

Present—Scudder, P.J., Hurlbutt, Centra, Fahey and Green, JJ.