                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    105664
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

ANGEL VALVERDE,
                    Appellant.
________________________________


Calendar Date:    October 9, 2014

Before:   Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                              __________


     Aaron A. Louridas, Delmar, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.

                              __________


Lynch, J.

      Appeal from a judgment of the County Court of Schenectady
County (Hoye, J.), rendered December 15, 2011, upon a verdict
convicting defendant of the crimes of assault in the first
degree, criminal possession of a weapon in the second degree (two
counts) and tampering with physical evidence.

      Defendant was charged by indictment with assault in the
first degree, two counts of criminal possession of a weapon in
the second degree and tampering with physical evidence based on
his role in a street fight involving multiple participants during
the evening of September 29, 2010 in the City of Schenectady,
Schenectady County. Thomas Ryan (hereinafter the victim) was
shot in the leg during the altercation, sustaining a fractured
femur. Following a jury trial, defendant was convicted as
                              -2-                105664

charged and sentenced to three prison terms of 15 years, with
five years of postrelease supervision, and one prison term of 1a
to 4 years, all to run concurrently. Defendant appeals.

      To begin, defendant failed to preserve his argument that
the verdict is not supported by legally sufficient evidence since
he did not renew the motion to dismiss at the close of his proof
(see People v Kolupa, 13 NY3d 786, 787 [2009]; People v Hines, 97
NY2d 56, 61-62 [2001]; compare People v Finch, 23 NY3d 408, 416
[2014]). Nor was his general motion to dismiss the assault count
at the close of the People's direct case adequate to preserve
said claim (see People v Hawkins, 11 NY3d 484, 492 [2008]). We,
nonetheless, must determine whether all the elements of the
crimes charged were proven beyond a reasonable doubt in reviewing
defendant's claim that the verdict was against the weight of the
evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007];
People v Thomas, 105 AD3d 1068, 1069-1070 [2013], lv denied 21
NY3d 1010 [2013]).

      Defendant essentially maintains that this is a case of
mistaken identity and that the evidence was insufficient to
establish that he was even at the melee, let alone that he was
the shooter. The event was prompted by an ongoing feud between
members of the victim's family, and the friends and family of his
sister's boyfriend, Donald Andrews. Earlier in the day, the
victim and Donald Andrews were involved in a physical
altercation. That evening, Ben Ryan, the victim's brother, and
Jonathan Best were sitting on a stoop on Park Avenue when a red
sports utility vehicle (hereinafter SUV) passed by several times.
Donald Andrews' two brothers, Dante Macklin and Travis Andrews
(hereinafter Andrews), were in the SUV, along with Andrews'
girlfriend, Samantha Bogdanowicz. After receiving a call from
his brother, the victim showed up at the scene about the same
time that the SUV returned. A fight immediately ensued. As the
fighting began to subside, shots were fired and the victim was
wounded.

      The People presented the testimony of several participants
– the victim and his brother, Best, Bogdanowicz, Macklin and
Andrews. Importantly, Best testified that he saw defendant, who
was wearing a white shirt and black hat with ear flaps, holding a
                              -3-                105664

handgun at waist level and aiming it towards the victim. When
Best ran for cover, he heard three shots. Macklin testified that
defendant had the gun at the time the shots were fired. The
victim testified that he did not know defendant beforehand, but
recognized him from Facebook. The victim explained that he was
fighting with defendant, when his brother and Best interceded.
As he stepped away, the victim began to fight with another
individual and was shot in the leg. Both the victim and his
brother acknowledged that they did not see who actually fired the
shots. For her part, Bogdanowicz confirmed that Andrews, Macklin
and defendant were all involved in the fight. Andrews, who
admitted that he dropped a knife during the fight, testified that
defendant was wearing a brown hat and a white shirt.

      According to Bogdanowicz, Macklin and Andrews, they
returned with defendant to the home of Andrews' mother on Foster
Avenue after the shooting. Bogdanowicz testified that defendant
stated during the ride, "I hit the kid," which she interpreted as
meaning he shot the victim. Andrews also testified that
defendant admitted shooting the victim. Bogdanowicz testified
that, once inside the Foster Avenue residence, defendant took off
his shirt, which he used to wrap the gun, and went into the
basement or outside with Macklin. Macklin confirmed that
defendant hid the gun in the basement. Bogdanowicz further
testified that, as he was leaving the house, defendant stated
words to the effect, "I was never here. This never happened."

      The People also called the investigating police officers,
John Favata and Daniel Harrigan, as witnesses. Favata testified
that his investigation led to the Foster Avenue residence, where
a search was conducted with the owner's consent. Harrigan found
the handgun wrapped in a white shirt in the basement. Andrews
was found hiding in a crawl space and both Andrews and Macklin
were taken into custody. The People finally presented the
testimony of a detective who retrieved various items at the scene
of the shooting, including a brown hat and a knife. At the
Foster Avenue residence, the detective took possession of the
handgun, the white shirt and a sheath that matched the knife.
The gun was loaded with three spent rounds and three live rounds
and was found to be operable. Subsequent DNA testing of blood
stains on the white shirt and brown hat was consistent with
                              -4-                105664

defendant's DNA, while testing of the weapon and ammunition was
inconclusive. For his part, defendant presented three alibi
witnesses.

      On this record, we recognize that a different verdict would
not have been unreasonable. As such, our role is to "weigh
conflicting testimony, review any rational inferences that may be
drawn from the evidence and evaluate the strength of such
conclusions" (People v Danielson, 9 NY3d at 348). Defendant
contends that the jury failed to accord adequate weight to the
testimony of his alibi witnesses and that the testimony of
Bogdanowicz, Macklin and Andrews was patently incredible and
formulated to shield Andrews from culpability as the actual
shooter. Defendant's argument ignores the testimony of the
victim and his brother placing him at the scene and Best's
testimony that defendant had the gun. Moreover, the DNA evidence
matched defendant with the hat and shirt recovered at the scene
and at the Foster Avenue residence. While there are
inconsistencies in the testimony, after viewing and weighing the
evidence in a neutral light and with deference to the jury's
credibility assessments, we conclude that the verdict is not
contrary to the weight of the evidence (see People v Bleakley, 69
NY2d 490, 495 [1987]; People v Perry, 116 AD3d 1253, 1255
[2014]).

      Next, defendant contends that County Court's Sandoval
ruling was an abuse of discretion. At issue was defendant's plea
of guilty in August 2010 to attempted criminal possession of a
weapon in the second degree, just a month before the current
incident. In our view, the court acted within its discretion in
fashioning a compromise that would allow the People to inquire as
to whether defendant had a prior felony conviction and the date
of same, without inquiring as to the details of the conviction
(see People v Lloyd, 118 AD3d 1117, 1122 [2014]; People v Young,
115 AD3d 1013, 1014 [2014]).

      Defendant further contends that County Court erred in not
precluding an audio recording of a jailhouse phone call and
related testimony due to untimely disclosure. The recording is
of a call made by a fellow inmate, Justin Broderick, at the
request of defendant to defendant's girlfriend, Aleeta Corpening.
                              -5-                105664

During the call, Broderick provides instructions, as written by
defendant, to have two of defendant's friends contact his lawyer
to advise that they left defendant's brown hat at the scene,
heard shots and saw Andrews with the gun and later gave Andrews
the shirt to wrap the gun. The friends were instructed to
contact the lawyer that day because defendant had a court
appearance the next day. Notably, the call begins with
instructions advising that the call is being recorded, and
Broderick confirmed that defendant was nearby and providing
information to him throughout the call. We recognize this
evidence was not disclosed until the third day of trial, but
defense counsel, who listened to the recording, raised no
objection to the timing of the disclosure. As such, the
challenge has not been preserved for review. In any event,
defendant has not shown any prejudice resulting from the delay.
Defense counsel effectively cross-examined Broderick and
presented the testimony of Corpening, who received the call.

      We are also satisfied that defendant received the effective
assistance of counsel. Defendant's contention to the contrary is
based on counsel's agreement to waive a Wade hearing in exchange
for additional time to consider a plea bargain and counsel's
failure to object to the late disclosure of the audio recording.
As discussed above, several witnesses identified defendant as the
perpetrator. Any error in not objecting to the late disclosure
of the recording was of limited import in view of the totality of
this record. Counsel proffered a meaningful mistaken identity
defense and actively participated through each phase of the
trial. We conclude that defendant received meaningful
representation (see People v Green, 119 AD3d 23, 31 [2014], lv
denied 23 NY3d 1062 [2014]; People v Alls, 117 AD3d 1190, 1192-
1193 [2014]; People v Hughes, 114 AD3d 1021, 1024-1025 [2014], lv
denied 23 NY3d 1038 [2014]).

      Finally, considering that defendant was awaiting sentencing
on the earlier weapon conviction at the time of this altercation,
the sentence was not an abuse of discretion and we do not find
extraordinary circumstances warranting any reduction.

     Stein, J.P., Garry, Rose and Devine, JJ., concur.
                        -6-                  105664

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
