PEOPLE v. SCISSION (2009)

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 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   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 A.D.3d 1361, 1364, 802 N.Y.S.2d 813, lv. denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161 [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 A.D.3d 1198, 1198, 786 N.Y.S.2d 782, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677, 5 N.Y.3d 760, 801 N.Y.S.2d 255, 834 N.E.2d 1265;  see People v. DeCarlis, 37 A.D.3d 1040, 829 N.Y.S.2d 314, lv. denied 8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238).   The sentence is not unduly harsh or severe.   We have reviewed defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: