14-164. THE PEOPLE OF THE STATE OF NEW YORK, res, v. WILLIAM HOOPER, def-app — Judgment of conviction (Linda Poust-Lopez, J.), rendered February 27, 2013, affirmed.Defendant’s guilty plea was knowing, intelligent and voluntary. At the plea proceeding, defendant pleaded guilty to unlicensed driving, a traffic infraction, and disorderly conduct, a violation, in satisfaction of an accusatory instrument charging, inter alia, several misdemeanor offenses. Defendant personally confirmed that he was pleading guilty voluntarily and that he understood he was waiving the right to a trial, the right to present a defense and the right to confront the witnesses against him. Thus, the record as a whole establishes defendant’s understanding and waiver of his constitutional rights (see Boykin v. Alabama, 395 US 238 [1969]), despite the absence of a full enumeration of all the rights waived (see People v. Sougou, 26 NY3d 1052, 1054 [2015]; People v. Simmons, 138 AD3d 520 [2016], lv denied 27 NY3d 1139 [2016]). In any event, the only relief that defendant requests is dismissal of the information, and he expressly requests this Court to affirm his conviction if it does not grant a dismissal. Since we do not find that dismissal would be appropriate, we affirm on this basis as well (see People v. Conceicao 26 NY3d 375, 385 n 1 [2015]; People v. Teron, 139 AD3d 450 [2016]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 20, 201817-282. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ABDELHAKIM HOUMITA, def-app — Judgment of conviction (Kevin B. McGrath, J.), rendered September 20, 2016, affirmed.The verdict convicting defendant of attempted petit larceny (see Penal Law §§110.00/155.25) and attempted criminal possession of stolen property in the fifth degree (see Penal Law §§110.00/165.40) was not against the weight of the evidence. The evidence supports the inference that defendant acted with larcenous intent when he secreted various items of merchandise in his personal bag, walked past a bank of cash registers without paying for the items and attempted to exit the Whole Foods store (see People v. Olivo, 52 NY2d 309, 317-319 [1981]). There is no basis for disturbing the court’s credibility determinations, including its rejection of defendant’s explanation for his conduct (see People v. Marks, 67 AD3d 477 [2009], lv denied 14 NY3d 803 [2010]; People v. Kevrekian, 304 AD2d 374 [2003], lv denied 100 NY2d 583 [2003]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 20, 201817-390. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-1, plf-res, v. NATHANIEL TOWNSEND, def-app -and- Carmen Pearce, def — Appeal from order (Llinet M. Rosado, J.), entered January 24, 2017, deemed an appeal from the ensuing judgment (same court and Judge), entered March 9, 2017, and so considered (see CPLR 5520[c]), judgment affirmed, without costs.Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting documentary evidence establishing that defendant executed a credit agreement with (nonparty) Sovereign Bank for a student loan in the amount of $6,000, that defendant defaulted on his obligations to repay the principal with interest, and that Sovereign transferred to plaintiff the rights under the agreement (see New York State Higher Educ. Servs. Corp. v. Feher, 291 AD2d 736, 737 [2002], lv dismissed and denied 98 NY2d 718 [2002]). In opposition, defendant failed to establish the existence of a triable issue of fact sufficient to withstand summary judgment. Contrary to defendant’s arguments, the documents relied upon by the court in reaching its determination consisted of business records, a well-recognized exception to the hearsay rule (see New York State Higher Educ. Servs. Corp. v. Barry, 267 AD2d 567 [1999]). Plaintiff additionally established its standing to maintain this action by submitting documentary proof that the loan was transferred. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 20, 201816-493. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ARKENY OLIVERO, def-app — Judgment of conviction (Ann E. Scherzer, J.), rendered February 29, 2016, affirmed.Defendant’s contention that the evidence adduced at trial was legally insufficient to support his conviction because the testimony of the complaining witness was incredible as a matter of law is unpreserved for appellate review, since defendant did not specify that ground in his motion to dismiss at trial (see CPL 470.05[2]; People v. Gray, 86 NY2d 10 [1995]; People v. Torres, 219 AD2d 565 [1995], lv denied 87 NY2d 851 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of second-degree harassment (see Penal Law §240.26[1]). Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 NY 84, 94 [1903]). Its determination should be accorded great weight on appeal (see People v. Bleakley, 69 NY2d 490, 495 [1987]), and should not be disturbed unless manifestly erroneous and so plainly unjustified by the evidence that rejection is required in the interest of justice (see People v. Bartley, 219 AD2d 566, 567 [1995], lv denied 87 NY2d 898 [1995]). 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[5]). Defendant’s course of conduct supports the inference that he struck the victim with requisite intent to “harass, annoy or alarm” (Penal Law §240.26).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 20, 201816-337. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ERIC REDDICK, def-app — Judgment of conviction, (Felicia A. Mennin, J.), rendered July 27, 2015, affirmed.The verdict convicting defendant of driving while ability impaired (see Vehicle and Traffic Law §1192[1]) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations, including its assessment of police testimony that defendant drove “back and forth” between lanes “at a high rate of speed” and exhibited visible signs of intoxication — his eyes were bloodshot and watery, his speech was slurred, his breath had a odor of alcohol, and he was “swaying” when he exited the vehicle (see People v. Reyes, 136 AD3d 443 [2016]; see also People v. Cruz, 48 NY2d 419, 426-427 [1979], appeal dismissed 446 US 901 [1980]). The court appropriately exercised its discretion in denying defendant’s request for an adverse inference instruction concerning the People’s failure to preserve a tape of a 911 call to police and the radio run transmission that was broadcast in response to it, since there was no bad faith or lack of diligence on the part of the People (see People v. Martinez, 71 NY2d 937, 940 [1988]; People v. Marengo, 276 AD2d 358, 359 [2000], lv denied 95 NY2d 936 [2000]), and defendant has not established that he was prejudiced by the absence of the tape (see People v. Martinez, 22 NY3d 551, 567 [2014]). Testimony regarding the radio run was not admitted for the truth of the matter asserted, but solely as background to explain why the officer took certain actions. Defendant’s claim that the actual recording of the radio run would have revealed discrepancies in the officer’s notes of the transmission is speculative (see People v. Bailey, 24 AD3d 106 [2005], lv denied 6 NY3d 773 [2006]), and does not demonstrate prejudice in light of the officer’s first-hand observation of both defendant’s manner of driving, and his appearance and comportment at the scene (see People v. Heredia, 62 AD3d 615 [2009], lv denied 13 NY3d 745 [2009]).We have considered and rejected defendant’s remaining argument.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 20, 201818-039. SUDARSHAN THIND, plf-app, v. DR. CAREY SKORSKI, def-res — Judgment (Armando Montano, J.), entered on or about July 28, 2017, affirmed, without costs.A judgment rendered in the Small Claims Part of the Civil Court will be sustained on appeal unless it is shown that “substantial justice has not been done between the parties according to the rules and principles of substantive law” (CCA 1807; see Williams v. Roper, 269 AD2d 125 [2000], lv dismissed 95 NY2d 898 [2000]). Applying that limited standard of review in the matter at bar, we find no basis to substitute our judgment for that of the trial court in dismissing plaintiff’s contract, overcharge and related claims after a full trial. A fair interpretation of the evidence supports the trial court’s detailed findings that plaintiff failed to establish that she was entitled to a further refund of money from defendant medical doctor, particularly where it was undisputed that plaintiff received medical treatment from defendant and defendant established that he had, before the trial, refunded a majority of his fees to plaintiff.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 20, 2018
