People v. Burks

Appellate Division of the Supreme Court of New York

People v. Burks

227 A.D.2d 905, 643 N.Y.S.2d 796, 1996 N.Y. App. Div. LEXIS 6807

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

DecidedMay 31, 1996

StatusPublished

Cited by5 cases

This text of 227 A.D.2d 905 (People v. Burks) 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. Burks, 227 A.D.2d 905, 643 N.Y.S.2d 796, 1996 N.Y. App. Div. LEXIS 6807 (N.Y. Ct. App. 1996).

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Opinion

Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, defendant contends that the jury’s verdict is against the weight of the evidence because the People failed to disprove his alibi beyond a reasonable doubt. "Determination of the credibility of witnesses is a task within the province of the jury, and its judgment should not be lightly disturbed” (People v DeJac, 219 AD2d 102, 106, citing People v Gruttola, 43 NY2d 116, 122). The jury was free to disbelieve defendant’s alibi witnesses and to credit instead the testimony that defendant was regularly at the home where the two drug sales occurred (see generally, People v Germeo, 188 AD2d 1027, 1027-1028; People v Marquez, 168 AD2d 393, lv denied 77 NY2d 997; cf., People v Oakes, 168 AD2d 984, 985, lv denied 78 NY2d 957; People v Salva, 156 AD2d 953).

Defendant further contends that County Court erred in allowing testimony on rebuttal concerning oral statements of defendant for which no CPL 710.30 notice had been given. Those statements, admissions that defendant resided at the home where the drug transactions occurred, fall within the pedigree exception to the notice requirement of CPL 710.30 (see, People v Rodney, 85 NY2d 289, 293). Moreover, no CPL 710.30 notice was required because the statements were not used as evidence-[906]*906in-chief, but instead were used on rebuttal to impeach defendant’s contrary testimony (see, People v Mitchell, 155 AD2d 879, lv denied 76 NY2d 739). Even assuming, arguendo, that the statements could have been offered as evidence-in-chief, there was no error in receiving them on rebuttal (see, People v Harris, 57 NY2d 335, 345-346, cert denied 460 US 1047; People v Cavallo, 167 AD2d 884, 885, lv denied 77 NY2d 876). (Appeal from Judgment of Wayne County Court, Sirkin, J. — Criminal Possession Controlled Substance, 3rd Degree.) Present — Pine, J. P., Wesley, Callahan, Doerr and Boehm, JJ.

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Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, defendant contends that the jury’s verdict is against the weight of the evidence because the People failed to disprove his alibi beyond a reasonable doubt. "Determination of the credibility of witnesses is a task within the province of the jury, and its judgment should not be lightly disturbed” (People v DeJac, 219 AD2d 102, 106, citing People v Gruttola, 43 NY2d 116, 122). The jury was free to disbelieve defendant’s alibi witnesses and to credit instead the testimony that defendant was regularly at the home where the two drug sales occurred (see generally, People v Germeo, 188 AD2d 1027, 1027-1028; People v Marquez, 168 AD2d 393, lv denied 77 NY2d 997; cf., People v Oakes, 168 AD2d 984, 985, lv denied 78 NY2d 957; People v Salva, 156 AD2d 953).

Defendant further contends that County Court erred in allowing testimony on rebuttal concerning oral statements of defendant for which no CPL 710.30 notice had been given. Those statements, admissions that defendant resided at the home where the drug transactions occurred, fall within the pedigree exception to the notice requirement of CPL 710.30 (see, People v Rodney, 85 NY2d 289, 293). Moreover, no CPL 710.30 notice was required because the statements were not used as evidence-[906]*906in-chief, but instead were used on rebuttal to impeach defendant’s contrary testimony (see, People v Mitchell, 155 AD2d 879, lv denied 76 NY2d 739). Even assuming, arguendo, that the statements could have been offered as evidence-in-chief, there was no error in receiving them on rebuttal (see, People v Harris, 57 NY2d 335, 345-346, cert denied 460 US 1047; People v Cavallo, 167 AD2d 884, 885, lv denied 77 NY2d 876). (Appeal from Judgment of Wayne County Court, Sirkin, J. — Criminal Possession Controlled Substance, 3rd Degree.) Present — Pine, J. P., Wesley, Callahan, Doerr and Boehm, JJ.

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227 A.D.2d 905, 643 N.Y.S.2d 796, 1996 N.Y. App. Div. LEXIS 6807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burks-nyappdiv-1996.

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