Opinion
2003-1697 WCR.
Decided March 18, 2005.
Appeal by defendant from a judgment of the City Court, City of White Plains, Westchester County (B. Leak, J.), rendered on November 25, 2003, convicting him of attempted assault in the third degree (Penal Law §§ 110.00, 120.00), menacing in the second degree (Penal Law § 120.14), menacing in the third degree (Penal Law § 120.15), reckless endangerment in the second degree (Penal Law § 120.20), reckless driving (Vehicle and Traffic Law § 1212) and criminal possession of a weapon (Penal Law § 205.01 [2]), and imposing sentence.
Judgment of conviction unanimously modified on the law by vacating the conviction of menacing in the third degree and dismissing said charge; as so modified, affirmed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Defendant was charged with swerving his automobile at the complaining witness's motorcycle numerous times while traveling on Post Road in White Plains. On this appeal, defendant challenges the geographical jurisdiction of the City Court of White Plains over the offenses charged against him. Defendant contends that the People failed to establish that the alleged acts occurred in White Plains since the People's witness did not know where the boundary line for Scarsdale began in relation to where the alleged acts occurred.
The burden is on the People to establish by a preponderance of the evidence that the offenses were committed within the geographical jurisdiction of the City Court of White Plains ( see People v. Greenberg, 89 NY2d 553, 556; People v. Moore, 46 NY2d 1, 6). Whether the testimony by the complaining witness, that the defendant veered at him four times while traveling down Post Road in White Plains, is sufficient to support a determination as to jurisdiction is a question of fact for the trier of fact to determine ( see Moore, 46 NY2d at 6). We find no basis to disturb the lower court's determination as to the court's jurisdiction.
Defendant contends further that the verdict was against the weight of the evidence and that the complaining witness's testimony was riddled with inconsistencies. It is well settled that resolution of issues of credibility, as well as the weight to be accorded to evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witness ( People v. Gaimari, 176 NY 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( see People v. Garafolo, 44 AD2d 86, 88). While there may have been certain inconsistencies in the complainant's testimony, minor variations, standing alone, are insufficient to warrant a reversal ( see People v. Bleakley, 69 NY2d 490; People v. Amarillo, 141 AD2d 551; Garafolo, 44 AD2d at 88).
However, the charge of menacing in the third degree should be dismissed as a lesser included offense of menacing in the second degree ( Matter of Jacqueline S., 284 AD2d 398).