PEOPLE v. MCKAY (2021)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of rape in the third degree (Penal Law § 130.25 [3]), criminal contempt in the second degree (§ 215.50 [3]), and harassment in the second degree (§ 240.26 [1]). We affirm.

Defendant contends that Supreme Court erred in denying his motion for a mistrial after one of the victims testified, in violation of the court's pretrial ruling precluding any evidence that defendant had guns in the home, that she feared that defendant had “weapons” in his home. We conclude that the court did not abuse its discretion in denying the motion (see People v. Garcia, 148 A.D.3d 1559, 1560, 51 N.Y.S.3d 281 [4th Dept. 2017], lv denied 30 N.Y.3d 980, 67 N.Y.S.3d 582, 89 N.E.3d 1262 [2017]; see generally People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 [1981]). Although it denied the motion for a mistrial, the court sustained defendant's objection to the testimony, struck the offending portion from the record, and provided “the jury with a curative instruction directing them to disregard the improper testimony, which ‘the jury is presumed to have followed’ ” (People v. Urrutia, 181 A.D.3d 1338, 1338-1339, 121 N.Y.S.3d 767 [4th Dept. 2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 872, 164 N.E.3d 959 [2021]; see People v.DeJesus, 110 A.D.3d 1480, 1482, 973 N.Y.S.2d 512 [4th Dept. 2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 639, 7 N.E.3d 1127 [2014]; People v. Hawkes, 39 A.D.3d 1209, 1210, 834 N.Y.S.2d 415 [4th Dept. 2007], lv denied 9 N.Y.3d 845, 844, 840 N.Y.S.2d 771, 872 N.E.2d 884 [2007]).

We also reject defendant's contention that the court erred in refusing to sever count one of the indictment, charging rape in the third degree, from counts two and three, charging criminal contempt in the second degree and harassment in the second degree with respect to a separate victim. The counts were properly joined pursuant to CPL 200.20 (2) (b), and the court therefore “lacked statutory authority to grant defendant's [severance] motion” (People v. Murphy, 28 A.D.3d 1096, 1097, 813 N.Y.S.2d 837 [4th Dept. 2006], lv denied 7 N.Y.3d 760, 759, 819 N.Y.S.2d 885, 853 N.E.2d 256 [2006]).

Viewing the evidence in light of the elements of the crime 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 [2007]), we also reject defendant's contention that the verdict with respect to rape in the third degree is 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 [1987]). Where, as here, “witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor” (People v. Streeter, 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014] [internal quotation marks omitted]). The jury was “entitled to credit the testimony of the People's witnesses ․ over the testimony of defendant's witnesses, including that of defendant [himself],” and we perceive no reason to disturb those credibility determinations (People v. Tetro, 175 A.D.3d 1784, 1788, 109 N.Y.S.3d 776 [4th Dept. 2019]). In particular, we note that there was nothing about the victim's testimony that was “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v. Barnes, 158 A.D.3d 1072, 1073, 70 N.Y.S.3d 679 [4th Dept. 2018], lv denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018]; see People v. Smith, 73 A.D.3d 1469, 1470, 900 N.Y.S.2d 802 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010]).

Finally, we note that the amended certificate of conviction must be corrected to reflect that Joanne M. Winslow, J., presided at trial and sentencing (see People v. Sweney, 55 A.D.3d 1350, 1352, 864 N.Y.S.2d 634 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008]).