People v. Batista

Appellate Division of the Supreme Court of New York

People v. Batista

172 A.D.2d 386, 568 N.Y.S.2d 766, 1991 N.Y. App. Div. LEXIS 4951

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 23, 1991

StatusPublished

Cited by1 cases

This text of 172 A.D.2d 386 (People v. Batista) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Batista, 172 A.D.2d 386, 568 N.Y.S.2d 766, 1991 N.Y. App. Div. LEXIS 4951 (N.Y. Ct. App. 1991).

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Opinion

Judgment, Supreme Court, New York County (Jay Gold, J.), rendered April 20, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a predicate felon, to a term of imprisonment of from 4 Vi to 9 years, unanimously affirmed.

There is no merit to defendant’s claim that the jury verdict was against the weight of the evidence because of alleged inconsistencies in the undercover police officer’s testimony. The alleged inconsistencies involved matters essentially collateral to the elements of the crime of which defendant was convicted, and they related to credibility alone. The determination of the jury, which heard argument on the alleged inconsistencies but credited the officer’s testimony, should not be disturbed on appeal. (People v Malizia, 62 NY2d 755, cert denied 469 US 932.)

The trial court’s summary denial of defendant’s motion to [387]*387set aside the verdict on the ground of newly discovered evidence, pursuant to CPL 330.30 (3) was proper, given defendant’s failure to establish the prerequisites for such a claim, i.e., that the evidence could not have been discovered before trial by the exercise of due diligence and that the evidence did not merely contradict former evidence introduced by the People (People v Salemi, 309 NY 208, 216, cert denied 350 US 950; People v Latella, 112 AD2d 321, lv denied 66 NY2d 616).

The defendant was properly adjudicated a predicate felon, without a hearing where, in challenging the constitutionality of the plea on the predicate, defense counsel admitted that defendant had been properly allocuted but argued, based on his observation of the defendant during the current proceeding, that he was not "bright enough” to knowingly waive his rights. Since counsel admitted that defendant had been properly allocuted, the plea suffered from no constitutional infirmity and counsel’s observation two years after the plea did not warrant a hearing. (People v Harris, 61 NY2d 9.) Concur— Sullivan, J. P., Rosenberger, Wallach, Asch and Kassal, JJ.

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Judgment, Supreme Court, New York County (Jay Gold, J.), rendered April 20, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a predicate felon, to a term of imprisonment of from 4 Vi to 9 years, unanimously affirmed.

There is no merit to defendant’s claim that the jury verdict was against the weight of the evidence because of alleged inconsistencies in the undercover police officer’s testimony. The alleged inconsistencies involved matters essentially collateral to the elements of the crime of which defendant was convicted, and they related to credibility alone. The determination of the jury, which heard argument on the alleged inconsistencies but credited the officer’s testimony, should not be disturbed on appeal. (People v Malizia, 62 NY2d 755, cert denied 469 US 932.)

The trial court’s summary denial of defendant’s motion to [387]*387set aside the verdict on the ground of newly discovered evidence, pursuant to CPL 330.30 (3) was proper, given defendant’s failure to establish the prerequisites for such a claim, i.e., that the evidence could not have been discovered before trial by the exercise of due diligence and that the evidence did not merely contradict former evidence introduced by the People (People v Salemi, 309 NY 208, 216, cert denied 350 US 950; People v Latella, 112 AD2d 321, lv denied 66 NY2d 616).

The defendant was properly adjudicated a predicate felon, without a hearing where, in challenging the constitutionality of the plea on the predicate, defense counsel admitted that defendant had been properly allocuted but argued, based on his observation of the defendant during the current proceeding, that he was not "bright enough” to knowingly waive his rights. Since counsel admitted that defendant had been properly allocuted, the plea suffered from no constitutional infirmity and counsel’s observation two years after the plea did not warrant a hearing. (People v Harris, 61 NY2d 9.) Concur— Sullivan, J. P., Rosenberger, Wallach, Asch and Kassal, JJ.

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Bluebook (online)

172 A.D.2d 386, 568 N.Y.S.2d 766, 1991 N.Y. App. Div. LEXIS 4951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-batista-nyappdiv-1991.

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