| People v Smith |
| 2010 NY Slip Op 04016 [73 AD3d 1469] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Smith,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Douglas A. Goerss of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered June 13, 2008. The judgment convicted defendant, upon a jury verdict, of criminalpossession 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 following a jury trial ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), arising froman incident in which defendant stabbed his neighbor with a knife in the hallway of their duplexapartment. Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we reject the contention of defendant that the evidenceis legally insufficient to establish that he possessed the knife with the intent to use it unlawfully.The evidence at trial established that the victim knocked on defendant's door in response to loudmusic, that defendant answered the door with the knife already in his hand, and that he stabbedthe victim with the knife three times. Even assuming, arguendo, that defendant initiallypossessed the knife for a lawful purpose, we conclude that there is ample evidence from whichthe jury could infer that, at some point during the altercation, defendant formed the requisiteintent to use it unlawfully (see People vGonzalez, 64 AD3d 1038, 1041 [2009], lv denied 13 NY3d 796 [2009]; seealso People v Porter, 284 AD2d 931 [2001], lv denied 96 NY2d 906 [2001];People v Leon, 163 AD2d 740, 742 [1990], lv denied 77 NY2d 879 [1991]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Although there were inconsistencies in the trial testimony of the victim and between his grandjury and trial testimony, the victim's testimony was not so inconsistent as to be incredible as amatter of law (see People v Black,38 AD3d 1283, 1285 [2007], lv denied 8 NY3d 982 [2007]). Testimony will bedeemed incredible as a matter of law only where it is "manifestly untrue, physically impossible,contrary to experience, or self-contradictory" (People v Stroman, 83 AD2d 370, 373[1981]), and that is not the case here. Further, it [*2]is wellsettled that credibility issues are best resolved by the jury (see People v Harris, 15 AD3d 966 [2005], lv denied 4NY3d 831 [2005]), and we perceive no basis to disturb its determination.
The contention of defendant that he was deprived of a fair trial by prosecutorial misconducton summation is not preserved for our review (People v Pringle, 71 AD3d 1450 [2010]). In any event, theprosecutor's allegedly improper comments did not " 'cause[ ] such substantial prejudice to thedefendant that he has been denied due process of law' " (People v Rubin, 101 AD2d 71,77 [1984], lv denied 63 NY2d 711 [1984]). Finally, considering the violent nature of thecrime and the injury sustained by the victim, we conclude that the sentence is not unduly harshor severe. Present—Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.