People v. Sellitti

255 A.D.2d 466, 682 N.Y.S.2d 50, 1998 N.Y. App. Div. LEXIS 11973

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1998
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered July 28, 1995, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]). The defendant’s challenges to the credibility of prosecution witnesses who implicated him in the attack upon the victim were made to the jury, and we see no reason to disturb its determination (see, People v Reed, 181 AD2d 838). Moreover, having reviewed the trial court’s charge, we are convinced that the verdict of guilt as to the defendant was not repugnant to his codefendant’s acquittal (see, People v Hampton, 61 NY2d 963, 964).

The court properly declined to admit into evidence statements of other participants in the crime who were tried separately. Although we agree with the defendant that portions of those statements may have been admissible as declarations against interest (see, People v Maerling, 46 NY2d 289), they were not relevant to the issues before the jury. Specifically, the declarations did not tend to prove that the defendant did not participate in the attack upon the victim, or that he was not liable for aiding and abetting the other persons involved in the attack, or that his actions were justified (see, People v Schollin, 255 AD2d 465 [decided herewith]).

Finally, considering the court’s charge to the jury in its entirety, we find that it was fair and balanced (see, People v Harris, 171 AD2d 882). Thompson, J. P., Krausman, Goldstein and Luciano, JJ., concur.