People v. McKelvin

50 A.D.3d 591, 858 N.Y.S.2d 119

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2008
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered September 7, 2006, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 12V2 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning credibility. There was extensive evidence of defendant’s guilt including, among other things, eyewitness testimony that defendant was one of the two men who shot the victim.

The court properly exercised its discretion when it denied defendant’s mistrial motion, made during the court’s jury charge after the court briefly referred to a matter not in evidence. The court immediately corrected its inadvertent error and gave a curative instruction that was sufficient to prevent any prejudice (see People v Santiago, 52 NY2d 865, 866 [1981]).

Defendant’s remaining contentions regarding the court’s jury instructions are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. In each instance the court’s charge, viewed as a whole, conveyed the proper standards. The absence of objections by trial counsel did not deprive defendant of effective assistance, since nothing in the instructions at issue was constitutionally deficient or caused defendant any prejudice.

We perceive no basis for reducing the sentence. Concur— Saxe, J.E, Nardelli, Buckley and Catterson, JJ.