| People v Scission |
| 2009 NY Slip Op 02151 [60 AD3d 1391] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RashadScission, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), renderedDecember 12, 2007. The judgment convicted defendant, upon a jury verdict, of attemptedmurder in the second degree, assault in the first degree, criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]). Defendant made only a general motion for a trial order of dismissal and thus failed topreserve for our review his contention that the evidence is legally insufficient to support theconviction (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). The further contention of defendantthat he was denied a fair trial by prosecutorial misconduct is based primarily on alleged instancesof prosecutorial misconduct that are unpreserved for our review (see CPL 470.05 [2])and, in any event, we conclude that "[a]ny improprieties were not so pervasive or egregious as todeprive defendant of a fair trial" (People v Cox, 21 AD3d 1361, 1364 [2005], lvdenied 6 NY3d 753 [2005] [internal quotation marks omitted]).
Defendant contends that County Court erred in denying his motion for a mistrial based on apolice officer's reference to an eight-year-old boy as a "witness." The officer had spoken withthat boy following the incident. We reject that contention. The record establishes that the courtissued a curative instruction, and we thus conclude that the court thereby "alleviated anyprejudice to defendant resulting from that testimony" (People v Colon, 13 AD3d 1198,1198 [2004], lv denied 4 NY3d 829, 5 NY3d 760 [2005]; see People v DeCarlis,37 AD3d 1040 [2007], lv denied 8 NY3d 945 [2007]). The sentence is not unduly harshor severe. We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present—Hurlbutt, J.P., Martoche, Centra, Peradotto and Gorski, JJ.