| People v Gaston |
| 2012 NY Slip Op 07542 [100 AD3d 1463] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Victor Gaston,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered May 5,2010. The judgment convicted defendant, upon a jury verdict, of assault in the second 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 ofassault in the second degree (Penal Law § 120.05 [2]). Defendant failed to preserve for ourreview his contention that the evidence is legally insufficient because the testimony of the victimwas incredible as a matter of law (seePeople v Holloway, 97 AD3d 1099, 1099 [2012], lv denied 19 NY3d 1026[2012]; People v Brown, 67 AD3d1369, 1369-1370 [2009], lv denied 14 NY3d 886 [2010]) and, in any event, thatcontention is without merit. The victim's testimony "was not incredible as a matter of lawinasmuch as it was not impossible of belief, i.e., it was not manifestly untrue, physicallyimpossible, contrary to experience, or self-contradictory" (People v Harris, 56 AD3d 1267, 1268 [2008], lv denied 11NY3d 925 [2009]). Viewing the evidence in light of the elements of the crime as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])."Where, as here, witness credibility is of paramount importance to the determination of guilt orinnocence, [we] must give '[g]reat deference . . . [to the factfinder's] opportunity toview the witnesses, hear the testimony and observe demeanor' " (People v Harris, 15 AD3d 966,967 [2005], lv denied 4 NY3d 831 [2005], quoting Bleakley, 69 NY2d at 495).Although an acquittal would not have been unreasonable given the inconsistencies in the victim'stestimony (see People v Kilbury, 83AD3d 1579, 1580-1581 [2011], lv denied 17 NY3d 860 [2011]; People v Hill, 74 AD3d 1782,1782 [2010], lv denied 15 NY3d 805 [2010]), it cannot be said that the jury failed to givethe evidence the weight it should be accorded (see generally Bleakley, 69 NY2d at 495).
We reject defendant's contention that County Court erred in denying his motion to sever thetwo assault counts. The two counts both charged assault in the second degree, although underdifferent subdivisions, and involved the same victim. Even assuming, arguendo, that those countswere not properly joinable pursuant to CPL 200.20 (2) (b), we nevertheless conclude that theywere properly joinable pursuant to CPL 200.20 (2) (c) because they "are defined by the same[*2]or similar statutory provision and consequently are the sameor similar in law," and defendant failed to show good cause for severance (see CPL200.20 [3]; see generally People v Mahboubian, 74 NY2d 174, 183 [1989]). Indeed, thefact that defendant was acquitted of one count indicates that the jury was able to consider theproof concerning each count separately (see People v Davis, 19 AD3d 1007, 1007 [2005]).
Contrary to defendant's contention, he was not denied a fair trial by erroneous evidentiaryrulings. The court properly sustained two objections to irrelevant questions that defense counselasked the victim during cross-examination (see generally People v Baker, 294 AD2d 888,889 [2002], lv denied 98 NY2d 708 [2002]). Defendant failed to preserve for our reviewhis further contention that certain comments in the prosecutor's opening and closing statementsdeprived him of a fair trial (see CPL 470.05 [2]; People v Brown, 94 AD3d 1461, 1462 [2012], lv denied 19NY3d 995 [2012]), and in any event his contention is without merit. "Absent bad faith or undueprejudice, reversal is not required because the prosecutor fails to prove every statement orrepresentation made during an opening statement" (People v Evans, 242 AD2d 948, 949[1997], lv denied 91 NY2d 834 [1997]). The majority of the prosecutor's comments onsummation to which defendant objects on appeal were within the " 'broad bounds of rhetoricalcomment permissible in closing argument' " (People v Williams, 28 AD3d 1059, 1061 [2006], affd 8NY3d 854 [2007], quoting People v Galloway, 54 NY2d 396, 399 [1981]) and, in anyevent, they were " 'either a fair response to defense counsel's summation or fair comment on theevidence' " (People v Green, 60AD3d 1320, 1322 [2009], lv denied 12 NY3d 915 [2009]). Those comments thatwere arguably beyond those bounds and were not fair response or fair comment were not soegregious as to deprive defendant of a fair trial (see People v Figgins, 72 AD3d 1599, 1600 [2010], lvdenied 15 NY3d 893 [2010]; People v Rivera, 281 AD2d 927, 928 [2001], lvdenied 96 NY2d 906 [2001]).
We reject the contention of defendant that he was denied effective assistance of counsel.Inasmuch as defendant was not denied a fair trial by any alleged instances of prosecutorialmisconduct, defense counsel's failure to object to those comments does not constitute ineffectiveassistance of counsel (see People vLyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]). In addition,defendant failed to "demonstrate the absence of strategic or other legitimate explanations" fordefense counsel's motion to preclude the People from introducing certain evidence that defendantnow claims would have helped his defense (People v Garcia, 75 NY2d 973, 974 [1990]).Defendant's contention that defense counsel was ineffective in failing to inform him in a timelymanner of his right to appear and testify before the grand jury is based on matters outside therecord and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Bryant, 1 AD3d 966,966 [2003]). We have reviewed the remaining instances of alleged ineffective assistance ofcounsel raised by defendant and conclude that he received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Centra, Lindley and Whalen, JJ.