From Casetext: Smarter Legal Research

People v. Durden

Appellate Division of the Supreme Court of New York, Second Department
May 9, 1994
204 A.D.2d 480 (N.Y. App. Div. 1994)

Opinion

May 9, 1994

Appeal from the Supreme Court, Kings County (Rappaport, J.).


Ordered that the judgment is affirmed.

The order of trial prescribed by CPL 260.30 is not a rigid framework and the trial court has the discretionary power to alter the order of proof until such time as the case is submitted to the jury. Accordingly, the determination as to whether or not to reopen the trial is a matter resting within the sound discretion of the trial court (see, People v. Olsen, 34 N.Y.2d 349, 353; People v. Foy, 32 N.Y.2d 473, 476). Contrary to the defendant's contentions, we find that he was not prejudiced as a result of the court's ruling granting the People's application to reopen their case in order to present the testimony of an identification witness. The witness was named on the People's witness list and was expected to testify at trial. However, despite the People's diligent efforts to locate him both prior to and during trial, he was not located until after the close of summations. When the witness was located, the court granted the People's application to reopen their case, after which both sides were permitted to deliver supplemental summations on the testimony just presented. Under the circumstances, the court's ruling permitting the People to reopen their case, was not an improvident exercise of discretion (see, People v. Hinkley, 178 A.D.2d 800).

Viewing the evidence adduced at trial in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).

We have reviewed the defendant's remaining contentions, including those contained in his supplemental pro se brief, and find them to be without merit. Bracken, J.P., O'Brien, Santucci and Joy, JJ., concur.


Summaries of

People v. Durden

Appellate Division of the Supreme Court of New York, Second Department
May 9, 1994
204 A.D.2d 480 (N.Y. App. Div. 1994)
Case details for

People v. Durden

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHERMAN DURDEN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 9, 1994

Citations

204 A.D.2d 480 (N.Y. App. Div. 1994)
614 N.Y.S.2d 171

Citing Cases

People v. Thompson

35; People v Miles, 76 AD3d 645; People v Read, 71 AD3d 1167, 1168; People v Walton, 70 AD3d 871, 873; cf.…

People v. Smith

30( People v. Cox, 215 A.D.2d 684, 685, 628 N.Y.S.2d 294;see People v. Greer, 42 N.Y.2d 170, 178, 397…