PEOPLE v. JACKSON

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

The PEOPLE of the State of New York, Respondent, v. Valeressa JACKSON, Defendant-Appellant.

Decided: June 26, 2008

LIPPMAN, P.J., TOM, ANDRIAS, SAXE, JJ. Steven Banks, The Legal Aid Society, New York (Susan Epstein of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), for respondent.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered January 3, 2006, convicting defendant, after a jury trial, of assault in the second degree, and sentencing her, as a second violent felony offender, to a term of 6 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the court's credibility determinations concerning the resolution of conflicting testimony.   The victim's prior inconsistent statements concerning the cause of her injuries were fully explained by her fear of defendant.

 The court properly exercised its discretion in denying defendant's mistrial motion, made after a witness inadvertently referred to defendant's previous incarceration, since the reference was brief and the court issued prompt curative instructions to the jury to disregard the remark (see e.g. People v. Greene, 250 A.D.2d 547, 673 N.Y.S.2d 143 [1998], lv. denied 92 N.Y.2d 925, 680 N.Y.S.2d 466, 703 N.E.2d 278 [1998] ).   The jury is presumed to have followed those instructions (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ).