| People v Alexander |
| 2008 NY Slip Op 03235 [50 AD3d 816] |
| April 8, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JohnAlexander, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, andJohn B. Gaffney of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.),rendered January 24, 2005, convicting him of assault in the first degree and criminal contempt inthe first degree (11 counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The complainant testified that on January 31, 2004 the defendant came to her apartment and,after an argument about her new boyfriend, beat her in the face and head, first with a baseball bat,then with his fists. As a result, the complainant is now blind in her right eye and, at the time ofthe trial, was still suffering from headaches from fractures to her skull.
The defendant correctly contends that the prosecutor engaged in misconduct during hersummation by, among other things, repeatedly vouching for the veracity of the People's witnessesand implying that, in order to acquit the defendant, the jury would have to find that thecomplainant and other witnesses lied (see People v Bailey, 58 NY2d 272, 277 [1983];People v Paperno, 54 NY2d 294, 300-301 [1981]; People v Bull, 218 AD2d 663,665 [1995]). The court's prompt curative instructions, where the remarks were objected to, weresufficient to mitigate any possible prejudice (see People v Thomas, 8 AD3d 303 [2004]; People vDeFigueroa, 182 AD2d 772, 773 [1992]). Moreover, the error was harmless (see Peoplev Crimmins, 36 NY2d 230, 242 [1975]; People v Adamo, 309 AD2d 808, 809[2003]; People v Diaz, 239 AD2d 518, 519 [1997]).[*2]
The defendant's challenges to the prosecutor's questioningof him during cross-examination are unpreserved for appellate review and, in any event, thequestions either were not improper, or were harmless (see People v Crimmins, 36 NY2d230 [1975]).
The defendant also contends that the court committed reversible error by admitting thecontents of a tape of a telephone call to the 911 emergency number under the excited utteranceexception to the hearsay rule. While, contrary to the People's contention, the issue is preservedfor appellate review (see CPL 470.05 [2]; People v Albanese, 88 AD2d 603[1982]), there is no merit to the defendant's argument. Under the circumstances as testified to bythe complainant, the court providently exercised its discretion in determining that the 911 callwas "the product of the declarant's exposure to a startling or upsetting event that [was]sufficiently powerful to render the observer's normal reflective processes inoperative preventingthe opportunity for deliberation and fabrication" (People v Carroll, 95 NY2d 375, 385[2000] [internal quotation marks and citation omitted]; see People v Edwards, 47 NY2d493, 497 [1979]; People v Hasan,17 AD3d 482 [2005]; People v Corker, 309 AD2d 816, 817 [2003]).
With regard to his conviction of 11 counts of criminal contempt in the first degree, thedefendant contends that, because there was no credible evidence that he intended to harass,annoy, threaten, or alarm the complainant when he made hundreds of telephone calls to her inviolation of an order of protection in effect at the time, the People failed to establish his guilt bylegally sufficient evidence. We disagree. "Intent may be inferred from conduct as well as thesurrounding circumstances" (People v Steinberg, 79 NY2d 673, 682 [1992]; seePeople v Smith, 79 NY2d 309, 315 [1992]; People v Bracey, 41 NY2d 296, 301[1977]). Here, the jury could reasonably infer the requisite element of intent from the defendant'sconduct, including his earlier attack that resulted, among other things, in the victim being blindedin one eye, and his calling the victim approximately 435 times during the five months in question(see People v Tomasky, 36 AD3d1025, 1026 [2007]; People v Squires, 308 AD2d 553, 554 [2003]). Thus, viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt of 11counts of criminal contempt in the first degree.
The verdict was also supported by the weight of the evidence. Resolution of issues ofcredibility is primarily a matter to be determined by the jury, which saw and heard the witnesses,and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]). Upon the exercise of our factual review power, we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Although the defendanttestified that he had no intent to harass, annoy, threaten, or alarm the complainant, and that hethought the complainant wanted him to call her, the jury clearly found his testimony not credibleand rejected his testimony, as it was entitled to do (see People v Tomasky, 36 AD3d at1026).
The sentence imposed was not excessive (see People v White, 192 AD2d 736, 737[1993]; People v Suitte, 90 AD2d 80, 83 [1982]). Mastro, J.P., Rivera, Balkin andDickerson, JJ., concur.