PEOPLE v. WILSON (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered July 19, 2005, convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contentions that the prosecution failed to present legally sufficient evidence to disprove his justification defense and to establish the elements of assault in the second degree and criminal possession of a weapon in the second degree beyond a reasonable doubt are unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Flores, 43 A.D.3d 955, 841 N.Y.S.2d 633;  People v. Acquista, 41 A.D.3d 491, 491-492, 837 N.Y.S.2d 309).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), it was legally sufficient to disprove the justification defense and establish the defendant's guilt beyond a reasonable doubt (see People v. Leon, 19 A.D.3d 509, 510, 797 N.Y.S.2d 525, affd. 7 N.Y.3d 109, 817 N.Y.S.2d 619, 850 N.E.2d 666;  People v. Manning, 8 A.D.3d 298, 777 N.Y.S.2d 671).   Similarly, the defendant's legal challenge to the credibility of the complaining witness is unpersuasive, since the testimony of that witness was not incredible as a matter of law and merely raised issues for resolution by the jury (see People v. Sedney, 6 A.D.3d 632, 633, 774 N.Y.S.2d 799).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant's contention that a comment made by the prosecutor during summation required the granting of a mistrial is without merit.   While the comment was improper (see People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933), any potential prejudice which may have resulted was remedied by the prompt action of the trial court in sustaining the defense counsel's objection, striking the comment, and providing the jury with curative instructions to which the defendant assented (see People v. Ferguson, 82 N.Y.2d 837, 838, 606 N.Y.S.2d 145, 626 N.E.2d 930;  People v. Barnes, 80 N.Y.2d 867, 868, 587 N.Y.S.2d 597, 600 N.E.2d 228;  People v. Hernandez, 11 A.D.3d 479, 782 N.Y.S.2d 776;  People v. Thomas, 8 A.D.3d 303, 777 N.Y.S.2d 673).   Accordingly, the court did not improvidently exercise its discretion in denying the more drastic relief of a mistrial (see generally People v. Brown, 264 A.D.2d 528, 695 N.Y.S.2d 575, cert. denied 531 U.S. 1069, 121 S.Ct. 756, 148 L.Ed.2d 659;  People v. Dutcher, 244 A.D.2d 499, 664 N.Y.S.2d 110).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, do not require reversal.