| People v Griffin |
| 2017 NY Slip Op 04977 [151 AD3d 1824] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Devin Griffin, Also Known as Devin D. Griffin, Sr., Appellant. (AppealNo. 1.) |
Jeffrey Wicks, PLLC, Rochester (Jeffrey Wicks of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), renderedDecember 14, 2011. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence on theconviction of criminal possession of a weapon in the third degree is unanimously dismissed andthe judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon ajury verdict, of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and criminal possession of a weapon in the third degree(§ 265.02 [1]) and, in appeal No. 2, he appeals from a resentence in connection withhis conviction of criminal possession of a weapon in the third degree. As a preliminary matter,we dismiss the appeal from the resentence in appeal No. 2 because defendant raises nocontentions with respect thereto (seePeople v Scholz, 125 AD3d 1492, 1492 [2015], lv denied 25 NY3d 1077[2015]).
Contrary to defendant's contention, viewing the evidence in light of the elements of thecrimes as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). "[R]esolutionof issues of credibility, as well as the weight to be accorded to the evidence presented, areprimarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457 [2009], lv denied13 NY3d 942 [2010] [internal quotation marks omitted]) and "[w]here, as here, thedefendant's challenge is focused upon the credibility of the witnesses, we [must] accord 'greatdeference to the resolution of credibility issues by the trier of fact because those who see and hearthe witnesses can assess their credibility and reliability in a manner that is far superior to that ofreviewing judges who must rely on the printed record' " (People v Cole, 111 AD3d 1301,1302 [2013], lv denied 23 NY3d 1019 [2014], denied reconsideration 23 NY3d1060 [2014]).
Defendant contends that County Court erred in refusing to grant his motion for a mistrial. Wereject that contention. Defendant's motion was based upon the prosecutor's cross-examination ofa defense witness with questions implying that defendant had threatened the witness to testify,particularly through two of defendant's friends who were spectators in the courtroom. Inasmuchas we construe defendant's contention to be based on alleged prosecutorial misconduct, we notethat reversal is warranted only if the misconduct has caused such substantial prejudice todefendant that he was denied due process of law (see People v Jones, 100 AD3d 1362, 1366 [2012], lv denied21 NY3d 1005 [2013], cert denied 571 US &mdash, 134 S Ct 694 [2013]; People vRubin, [*2]101 AD2d 71, 77 [1984], lv denied 63NY2d 711 [1984]). "In measuring whether substantial prejudice has occurred, one must look atthe severity and frequency of the conduct, whether the court took appropriate action to dilute theeffect of that conduct, and whether review of the evidence indicates that without the conduct thesame result would undoubtedly have been reached" (People v Mott, 94 AD2d 415, 419[1983]). Here, we conclude that the disputed questions were isolated, and that the court tookappropriate action to dilute the effect of the questions by granting the alternative relief requestedby defendant, i.e., permitting defense counsel to recall the witness to explain that the twospectators were the witness's cousins, and that they were in the courtroom to support him. Wethus conclude that the alleged prosecutorial misconduct did not warrant reversal, and that thecourt therefore did not abuse its discretion by denying the motion for a mistrial (see generallyPeople v Ortiz, 54 NY2d 288, 292 [1981]; People v Love, 135 AD2d 1099, 1099[1987]).
We agree with defendant that the court erred in refusing to admit in evidence a priorconsistent statement of a witness, which statement defendant had sought to introduce in order toovercome the People's claim of recent fabrication (see People v McClean, 69 NY2d 426,428 [1987]). We conclude, however, that the error was harmless (see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]). Present—Smith, J.P., Lindley, DeJoseph,NeMoyer and Curran, JJ.