PEOPLE v. NOSEA (2023)

Judgment, Supreme Court, New York County (Anthony J. Ferrara, J.), rendered March 13, 2017, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of six months, with three years’ probation, 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 credibility determinations.  The evidence supports the conclusion that defendant caused physical injury to the victim by means of an umbrella, constituting a dangerous instrument.  The jury could have reasonably inferred from the type and location of the victim's injuries that they were caused by being struck over the head by an object rather than by being punched or falling to the ground.

The court providently exercised its discretion in admitting the victim's wife's statement to the responding detective as an excited utterance (see People v. Hernandez, 28 NY3d 1056, 1057 [2016];  People v. Brown, 70 N.Y.2d 513, 520–522 [1987]).  The statement was precipitated by an event that was startling and traumatic to the witness, where she saw defendant beating her husband over the head with an umbrella, causing extensive bleeding.  Her demeanor indicated that she had remained under the influence of the stress of the incident at the time she spoke to the detective.

The prosecutor's summation argument that defendant had been engaged in bullying the victim and his wife was fair comment on the evidence and was not an appeal for sympathy.  Defendant's remaining challenges to the prosecutor's summation, and his arguments concerning the court's conduct, are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal.  With the exception of a speculative argument for which the court gave a sufficient curative instruction, the remaining summation comments at issue constituted permissible comment on credibility issues and were responsive to defendant's summation arguments (see People v. Overlee, 236 A.D.2d 133 [1st Dept 1997], lv denied 91 N.Y.2d 976 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119 [1st Dept 1992], lv denied 81 N.Y.2d 884 [1993]).  As for the court's conduct, we find that the court acted within its discretion (see People v. Moulton, 43 N.Y.2d 944, 945 [1978]).