PEOPLE v. ROMAN

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Eric ROMAN, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  KEHOE, J.P., GORSKI, SMITH, PINE, AND HAYES, JJ. Frank H. Hiscock, Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of assault in the second degree (Penal Law § 120.05[2] ) and criminal possession of a weapon in the second degree (former § 265.03).   Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion for a mistrial based on the hearsay testimony of the victim that defendant wanted to shoot and kill him (see People v. Horn, 284 A.D.2d 986, 726 N.Y.S.2d 882, lv. denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402;  see generally People v. Abston, 229 A.D.2d 970, 971, 645 N.Y.S.2d 690, lv. denied 88 N.Y.2d 1066, 651 N.Y.S.2d 410, 674 N.E.2d 340).   The court's prompt curative instruction minimized any prejudice caused by the improper testimony (see Horn, 284 A.D.2d 986, 726 N.Y.S.2d 882;  see generally People v. Shorter, 6 A.D.3d 1204, 775 N.Y.S.2d 712, lv. denied 3 N.Y.3d 648, 782 N.Y.S.2d 419, 816 N.E.2d 209;  Abston, 229 A.D.2d at 971, 645 N.Y.S.2d 690).   Also contrary to defendant's contention, 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).   Three witnesses, including the victim, identified defendant as the shooter.  “Great deference is to be accorded to the [jury's] resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony” (People v. Valencia, 263 A.D.2d 874, 876, 695 N.Y.S.2d 186, lv. denied 94 N.Y.2d 799, 700 N.Y.S.2d 433, 722 N.E.2d 513).

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

MEMORANDUM: