Opinion
KA 03-00912.
April 29, 2005.
Appeal from a judgment of the Onondaga County Court (J. Kevin Mulroy, J.), rendered June 24, 1996. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and criminal possession of a weapon in the second degree.
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.
Present — Kehoe, J.P., Gorski, Smith, Pine and Hayes, JJ., concur.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of assault in the second degree (Penal Law § 120.05) 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 AD2d 986, lv denied 97 NY2d 683; see generally People v. Abston, 229 AD2d 970, 971, lv denied 88 NY2d 1066). The court's prompt curative instruction minimized any prejudice caused by the improper testimony ( see Horn, 284 AD2d 986; see generally People v. Shorter, 6 AD3d 1204, lv denied 3 NY3d 648; Abston, 229 AD2d at 971). Also contrary to defendant's contention, the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 NY2d 490, 495). 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 AD2d 874, 876, lv denied 94 NY2d 799).