GASTON, VICTOR, PEOPLE v ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1243
    KA 10-01594
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    VICTOR GASTON, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Erie County Court (Thomas P.
    Franczyk, J.), rendered May 5, 2010. The judgment convicted
    defendant, upon a jury verdict, of assault in the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of assault in the second degree (Penal Law §
    120.05 [2]). Defendant failed to preserve for our review his
    contention that the evidence is legally insufficient because the
    testimony of the victim was incredible as a matter of law (see People
    v Holloway, 97 AD3d 1099, 1099, lv denied 19 NY3d 1026; People v
    Brown, 67 AD3d 1369, 1369-1370, lv denied 14 NY3d 886) and, in any
    event, that contention is without merit. The victim’s testimony “was
    not incredible as a matter of law inasmuch as it was not impossible of
    belief, i.e., it was not manifestly untrue, physically impossible,
    contrary to experience, or self-contradictory” (People v Harris, 56
    AD3d 1267, 1268, lv denied 11 NY3d 925). Viewing the evidence in
    light of the elements of the crime as charged to the jury (see People
    v Danielson, 9 NY3d 342, 349), we reject defendant’s further
    contention that the verdict is against the weight of the evidence (see
    generally People v Bleakley, 69 NY2d 490, 495). “Where, as here,
    witness credibility is of paramount importance to the determination of
    guilt or innocence, [we] must give ‘[g]reat deference . . . [to the
    factfinder’s] opportunity to view the witnesses, hear the testimony
    and observe demeanor’ ” (People v Harris, 15 AD3d 966, 967, lv denied
    4 NY3d 831, quoting Bleakley, 69 NY2d at 495). Although an acquittal
    would not have been unreasonable given the inconsistencies in the
    victim’s testimony (see People v Kilbury, 83 AD3d 1579, 1580-1581, lv
    denied 17 NY3d 860; People v Hill, 74 AD3d 1782, 1782, lv denied 15
    NY3d 805), it cannot be said that the jury failed to give the evidence
    -2-                          1243
    KA 10-01594
    the weight it should be accorded (see generally Bleakley, 69 NY2d at
    495).
    We reject defendant’s contention that County Court erred in
    denying his motion to sever the two assault counts. The two counts
    both charged assault in the second degree, although under different
    subdivisions, and involved the same victim. Even assuming, arguendo,
    that those counts were not properly joinable pursuant to CPL 200.20
    (2) (b), we nevertheless conclude that they were properly joinable
    pursuant to CPL 200.20 (2) (c) because they “are defined by the same
    or similar statutory provision and consequently are the same or
    similar in law,” and defendant failed to show good cause for severance
    (see CPL 200.20 [3]; see generally People v Mahboubian, 74 NY2d 174,
    183). Indeed, the fact that defendant was acquitted of one count
    indicates that the jury was able to consider the proof concerning each
    count separately (see People v Davis, 19 AD3d 1007, 1007).
    Contrary to defendant’s contention, he was not denied a fair
    trial by erroneous evidentiary rulings. The court properly sustained
    two objections to irrelevant questions that defense counsel asked the
    victim during cross-examination (see generally People v Baker, 294
    AD2d 888, 889, lv denied 98 NY2d 708). Defendant failed to preserve
    for our review his further contention that certain comments in the
    prosecutor’s opening and closing statements deprived him of a fair
    trial (see CPL 470.05 [2]; People v Brown, 94 AD3d 1461, 1462, lv
    denied 19 NY3d 995), and in any event his contention is without merit.
    “Absent bad faith or undue prejudice, reversal is not required because
    the prosecutor fails to prove every statement or representation made
    during an opening statement” (People v Evans, 242 AD2d 948, 949, lv
    denied 91 NY2d 834). The majority of the prosecutor’s comments on
    summation to which defendant objects on appeal were within the
    “ ‘broad bounds of rhetorical comment permissible in closing
    argument’ ” (People v Williams, 28 AD3d 1059, 1061, affd 8 NY3d 854,
    quoting People v Galloway, 54 NY2d 396, 399) and, in any event, they
    were “ ‘either a fair response to defense counsel’s summation or fair
    comment on the evidence’ ” (People v Green, 60 AD3d 1320, 1322, lv
    denied 12 NY3d 915). Those comments that were arguably beyond those
    bounds and were not fair response or fair comment were not so
    egregious as to deprive defendant of a fair trial (see People v
    Figgins, 72 AD3d 1599, 1600, lv denied 15 NY3d 893; People v Rivera,
    281 AD2d 927, 928, lv denied 96 NY2d 906).
    We reject the contention of defendant that he was denied
    effective assistance of counsel. Inasmuch as defendant was not denied
    a fair trial by any alleged instances of prosecutorial misconduct,
    defense counsel’s failure to object to those comments does not
    constitute ineffective assistance of counsel (see People v Lyon, 77
    AD3d 1338, 1339, lv denied 15 NY3d 954). In addition, defendant
    failed to “demonstrate the absence of strategic or other legitimate
    explanations” for defense counsel’s motion to preclude the People from
    introducing certain evidence that defendant now claims would have
    helped his defense (People v Garcia, 75 NY2d 973, 974). Defendant’s
    contention that defense counsel was ineffective in failing to inform
    -3-                             1243
    KA 10-01594
    him in a timely manner of his right to appear and testify before the
    grand jury is based on matters outside the record and thus must be
    raised by way of a motion pursuant to CPL 440.10 (see People v Bryant,
    1 AD3d 966, 966). We have reviewed the remaining instances of alleged
    ineffective assistance of counsel raised by defendant and conclude
    that he received meaningful representation (see generally People v
    Baldi, 54 NY2d 137, 147).
    Finally, the sentence is not unduly harsh or severe.
    Entered:   November 9, 2012                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-01594

Filed Date: 11/9/2012

Precedential Status: Precedential

Modified Date: 10/8/2016