People v. Wiener

Appellate Division of the Supreme Court of New York

People v. Wiener

271 A.D.2d 319, 707 N.Y.S.2d 150, 2000 N.Y. App. Div. LEXIS 4394

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

DecidedApril 18, 2000

StatusPublished

Cited by3 cases

This text of 271 A.D.2d 319 (People v. Wiener) 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. Wiener, 271 A.D.2d 319, 707 N.Y.S.2d 150, 2000 N.Y. App. Div. LEXIS 4394 (N.Y. Ct. App. 2000).

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Opinion

—Judgment, Supreme Court, New York County (James Leff, J.), rendered January 2, 1996, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 2V2 to 7V2 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis to disturb the jury’s determinations concerning credibility. There was ample evidence of defendant’s guilt of assault under a depraved indifference theory (Penal Law § 120.10 [3]). The evidence permitted a reasonable inference that when defendant struck the victim he did so with knowledge of the fact that she was sitting precariously on the ledge of an airshaft.

The court properly exercised its discretion in denying defendant’s application to preclude the People from calling alibi rebuttal witnesses, made on the ground that the People’s alibi rebuttal notice was untimely (see, CPL 250.20 [2], [3], [4]). Defendant did not avail himself of his statutory right to an adjournment, and his claim of incurable prejudice is not established. We also note that the circumstances of the delay in providing notice were not unreasonable. Concur — Williams J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

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—Judgment, Supreme Court, New York County (James Leff, J.), rendered January 2, 1996, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 2V2 to 7V2 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis to disturb the jury’s determinations concerning credibility. There was ample evidence of defendant’s guilt of assault under a depraved indifference theory (Penal Law § 120.10 [3]). The evidence permitted a reasonable inference that when defendant struck the victim he did so with knowledge of the fact that she was sitting precariously on the ledge of an airshaft.

The court properly exercised its discretion in denying defendant’s application to preclude the People from calling alibi rebuttal witnesses, made on the ground that the People’s alibi rebuttal notice was untimely (see, CPL 250.20 [2], [3], [4]). Defendant did not avail himself of his statutory right to an adjournment, and his claim of incurable prejudice is not established. We also note that the circumstances of the delay in providing notice were not unreasonable. Concur — Williams J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

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Bluebook (online)

271 A.D.2d 319, 707 N.Y.S.2d 150, 2000 N.Y. App. Div. LEXIS 4394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wiener-nyappdiv-2000.

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