PEOPLE v. JOHNSON

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

The PEOPLE of the State of New York, Respondent, v. Michael JOHNSON, Defendant-Appellant.

Decided: November 19, 2009

ANDRIAS, J.P., SWEENY, NARDELLI, CATTERSON, DeGRASSE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Joseph Dawson, J.), rendered March 26, 2008, convicting defendant, after a jury trial, of assault in the first degree, criminal possession of a weapon in the fourth degree, aggravated harassment in the second degree, attempted assault in the third degree and menacing in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 12 1/2 years, unanimously affirmed.

 The verdict 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] ).   Moreover, we find the evidence to be overwhelming.   There is no basis for disturbing the jury's determinations concerning credibility.   Notwithstanding the victim's drug and alcohol abuse, she provided credible testimony that it was defendant, her former boyfriend, who caused her injuries.   The evidence, including the fact that the injuries consisted of a severed jugular vein and a separate stab wound to the arm, completely refuted any hypothesis that she accidentally stabbed herself.   We do not find anything particularly significant about the fact that she may have used the word accident to mean incident.

 The court properly exercised its discretion in denying defendant's mistrial motions, made when, at several junctures in her testimony, the victim volunteered uncharged crimes evidence that was not responsive to questions.   The drastic remedy of a mistrial was not warranted, because the curative actions that were either provided by the court, or offered by the court but rejected by defendant, were sufficient to prevent defendant from being prejudiced (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981];  People v. Young, 48 N.Y.2d 995, 425 N.Y.S.2d 546, 401 N.E.2d 904 [1980] ).