Opinion
602 KA 17–00891
06-14-2019
The PEOPLE of the State of New York, Respondent, v. Kurt HAZZARD, Defendant–Appellant. (Appeal No. 1.)
JOHN J. RASPANTE, UTICA, FOR DEFENDANT–APPELLANT. LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
JOHN J. RASPANTE, UTICA, FOR DEFENDANT–APPELLANT.
LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: In appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, course of sexual conduct against a child in the first degree ( Penal Law § 130.75[1][b] ) and, in appeal No. 1, he appeals from the resentence on that conviction. We note that, inasmuch as the sentence in appeal No. 2 was superseded by the resentence in appeal No. 1, the appeal from the judgment in appeal No. 2 insofar as it imposed sentence must be dismissed (see People v. Primm, 57 A.D.3d 1525, 1525, 870 N.Y.S.2d 188 [4th Dept. 2008], lv denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 908 N.E.2d 935 [2009] ).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention in appeal No. 2 that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). With respect to the credibility of the victim, we note that her testimony "was not so inconsistent or unbelievable as to render it incredible as a matter of law" ( People v. Black, 38 A.D.3d 1283, 1285, 832 N.Y.S.2d 375 [4th Dept. 2007], lv denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 869 N.E.2d 661 [2007] ). Issues of credibility are primarily for the jury's determination (see People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [2010] ), and we see no basis for disturbing the jury's credibility determinations in this case. Contrary to defendant's contention in appeal No. 1, the resentence is not unduly harsh or severe.