People v. Brescia

Appellate Division of the Supreme Court of New York

People v. Brescia

41 A.D.3d 613, 836 N.Y.S.2d 432

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 2007

StatusPublished

Cited by12 cases

This text of 41 A.D.3d 613 (People v. Brescia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Brescia, 41 A.D.3d 613, 836 N.Y.S.2d 432 (N.Y. Ct. App. 2007).

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Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered November 19, 2003, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]). Upon the exercise of our factual review power (see CEL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, supra).

Furthermore, the trial court providently exercised its discretion in denying the defendant’s motion for a mistrial based [614]*614upon the two brief references to his criminal record and prior incarceration made in the testimony adduced at trial (see People v Ortiz, 54 NY2d 288, 292 [1981]). Any prejudice to the defendant that might have resulted from such testimony was alleviated by the trial court’s prompt curative instructions to the jury (see People v Santiago, 52 NY2d 865, 866 [1981]; People v Smith, 23 AD3d 415 [2005]; People v Torres, 302 AD2d 411 [2003]).

The defendant’s contention alleging ineffective assistance of counsel is without merit (see People v Baldi, 54 NY2d 137, 151-152 [1981]).

The sentence imposed was not excessive (see Penal Law § 70.04 [3] [b]; People v Thompson, 60 NY2d 513, 519 [1983]).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are without merit. Rivera, J.P., Spolzino, Florio and Angiolillo, JJ., concur.

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Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered November 19, 2003, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]). Upon the exercise of our factual review power (see CEL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, supra).

Furthermore, the trial court providently exercised its discretion in denying the defendant’s motion for a mistrial based [614]*614upon the two brief references to his criminal record and prior incarceration made in the testimony adduced at trial (see People v Ortiz, 54 NY2d 288, 292 [1981]). Any prejudice to the defendant that might have resulted from such testimony was alleviated by the trial court’s prompt curative instructions to the jury (see People v Santiago, 52 NY2d 865, 866 [1981]; People v Smith, 23 AD3d 415 [2005]; People v Torres, 302 AD2d 411 [2003]).

The defendant’s contention alleging ineffective assistance of counsel is without merit (see People v Baldi, 54 NY2d 137, 151-152 [1981]).

The sentence imposed was not excessive (see Penal Law § 70.04 [3] [b]; People v Thompson, 60 NY2d 513, 519 [1983]).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are without merit. Rivera, J.P., Spolzino, Florio and Angiolillo, JJ., concur.

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41 A.D.3d 613, 836 N.Y.S.2d 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-brescia-nyappdiv-2007.

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