| People v May |
| 2015 NY Slip Op 01306 [125 AD3d 1465] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJonathan N. May, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered December 19, 2012. The judgment convicted defendant, upon a jury verdict,of assault in the third degree, and, upon a plea of guilty, of criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the third degree (Penal Law § 120.00 [1]) and upon aguilty plea of criminal possession of a weapon in the third degree (§ 265.02[1]). Viewing the evidence in the light most favorable to the People (see People vWilliams, 84 NY2d 925, 926 [1994]), we reject defendant's contention that theevidence is legally insufficient to support the conviction of assault (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). While there were someinconsistencies in the testimony of the victim, she was steadfast in her testimony thatdefendant, her long-term boyfriend, assaulted her, and the jury was entitled to credit thattestimony (see People vKelly, 34 AD3d 1341, 1342 [2006], lv denied 8 NY3d 847 [2007]).Viewing the evidence in light of the elements of that crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we likewise conclude that, although an acquittal would nothave been unreasonable, the verdict is not against the weight of the evidence (seeBleakley, 69 NY2d at 495). We note that "[r]esolution of issues of credibility, as wellas the weight to be accorded to the evidence presented, are primarily questions to bedetermined by the jury" (Peoplev Witherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010] [internal quotation marks omitted]), and we perceive no reason to disturb thejury's resolution of those issues in this case.
Contrary to defendant's contention, reversal is not required on the ground that thevictim testified beyond the scope of Supreme Court's Ventimiglia ruling. Thevictim volunteered that information, and the court issued a curative instruction to thejurors, directing them not to consider that testimony (see People v Holton, 225AD2d 1021, 1021 [1996], lv denied 88 NY2d 986 [1996]; see also People v Thigpen, 30AD3d 1047, 1048 [2006], lv denied 7 NY3d 818 [2006]). The court did notabuse its discretion in allowing the victim to testify regarding prior bad acts that occurredduring the assault on the victim inasmuch as that testimony "was inextricably interwovenwith the evidence of the charged crime, it was necessary to comprehend that evidence. . . and its probative worth exceeded its prejudicial effect" (People v Robb, 23 AD3d1116, 1117 [2005], lv denied 6 NY3d 780 [2006] [internal quotation marksomitted]).
We reject defendant's contention that the court erred in refusing to allow priorinconsistent statements of the victim in evidence. "The substance of th[ose] priorstatement[s] was admitted in evidence through defense counsel's cross-examination ofthat witness" (People v Lewis, 277 AD2d 1022, 1022 [2000], lv denied96 NY2d 802 [2001]; see People v Hendrix, 270 AD2d 958, 958 [2000], lvdenied 95 NY2d 853 [2000]). The court properly denied defendant's request for amissing [*2]witness instruction inasmuch as he failed todemonstrate that the witnesses " 'would naturally be expected to providenoncumulative testimony favorable to the [prosecution]' " (People vWilliams, 202 AD2d 1004, 1004 [1994], quoting People v Kitching, 78NY2d 532, 536 [1991]; seePeople v Edwards, 14 NY3d 733, 735 [2010]).
Contrary to defendant's contention, the court properly denied his Batsonchallenge with respect to two prospective jurors. Defendant failed to meet his prima facieburden of establishing that the prosecutor exercised the peremptory challenges in adiscriminatory manner (see generally People v Smocum, 99 NY2d 418, 421[2003]). Defendant's assertions "that the prospective jurors 'indicated no reason why theycould not serve fairly' are, standing alone, generally insufficient to establish a prima faciecase of discrimination" (Peoplev MacShane, 11 NY3d 841, 842 [2008]). We have considered defendant'sremaining contentions and conclude that they are without merit.Present—Scudder, P.J., Centra, Lindley, Sconiers and DeJoseph, JJ.