People v. Scission

Appellate Division of the Supreme Court of New York

People v. Scission

60 A.D.3d 1391, 875 N.Y.S.2d 384

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

DecidedMarch 20, 2009

StatusPublished

Cited by8 cases

This text of 60 A.D.3d 1391 (People v. Scission) 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. Scission, 60 A.D.3d 1391, 875 N.Y.S.2d 384 (N.Y. Ct. App. 2009).

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Opinion

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered December 12, 2007. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

[1392]*1392Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]). Defendant made only a general motion for a trial order of dismissal and thus failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The further contention of defendant that he was denied a fair trial by prosecutorial misconduct is based primarily on alleged instances of prosecutorial misconduct that are unpreserved for our review (see CPL 470.05 [2]) and, in any event, we conclude that “[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial” (People v Cox, 21 AD3d 1361, 1364 [2005], lv denied 6 NY3d 753 [2005] [internal quotation marks omitted]).

Defendant contends that County Court erred in denying his motion for a mistrial based on a police officer’s reference to an eight-year-old boy as a “witness.” The officer had spoken with that boy following the incident. We reject that contention. The record establishes that the court issued a curative instruction, and we thus conclude that the court thereby “alleviated any prejudice to defendant resulting from that testimony” (People v Colon, 13 AD3d 1198, 1198 [2004], lv denied 4 NY3d 829, 5 NY3d 760 [2005]; see People v DeCarlis, 37 AD3d 1040 [2007], lv denied 8 NY3d 945 [2007]). The sentence is not unduly harsh or severe. We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present — Hurlbutt, J.P., Martoche, Centra, Peradotto and Gorski, JJ.

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Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered December 12, 2007. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

[1392]*1392Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]). Defendant made only a general motion for a trial order of dismissal and thus failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The further contention of defendant that he was denied a fair trial by prosecutorial misconduct is based primarily on alleged instances of prosecutorial misconduct that are unpreserved for our review (see CPL 470.05 [2]) and, in any event, we conclude that “[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial” (People v Cox, 21 AD3d 1361, 1364 [2005], lv denied 6 NY3d 753 [2005] [internal quotation marks omitted]).

Defendant contends that County Court erred in denying his motion for a mistrial based on a police officer’s reference to an eight-year-old boy as a “witness.” The officer had spoken with that boy following the incident. We reject that contention. The record establishes that the court issued a curative instruction, and we thus conclude that the court thereby “alleviated any prejudice to defendant resulting from that testimony” (People v Colon, 13 AD3d 1198, 1198 [2004], lv denied 4 NY3d 829, 5 NY3d 760 [2005]; see People v DeCarlis, 37 AD3d 1040 [2007], lv denied 8 NY3d 945 [2007]). The sentence is not unduly harsh or severe. We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present — Hurlbutt, J.P., Martoche, Centra, Peradotto and Gorski, JJ.

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60 A.D.3d 1391, 875 N.Y.S.2d 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-scission-nyappdiv-2009.

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