Opinion
KA 99-05433
March 21, 2003.
Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered April 12, 1999, convicting defendant after a jury trial of criminal possession of a weapon in the third degree (two counts).
BRIDGET L. FIELD, SPENCERPORT, FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him after a jury trial of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02, [4]), defendant contends that County Court should have declared a mistrial based on the prejudicial effect of the testimony of a prosecution witness who asserted her right against self-incrimination at trial. We reject that contention. The court admonished the jurors to disregard that testimony, and "it cannot be presumed that the jurors would disregard the Trial Judge's instruction that they could not consider [that testimony] in reaching their verdict" (People v. Davis, 58 N.Y.2d 1102, 1104). We further conclude that the evidence, viewed in the light most favorable to the prosecution, is legally sufficient to support the conviction (see People v. Bleakley, 69 N.Y.2d 490, 495). A prosecution witness testified that he observed defendant with a gun speaking to the occupants of a vehicle, and that he then observed defendant enter a neighbor's home. That neighbor gave the police permission to search her home, and the police found defendant in one room and a loaded gun in another room. Furthermore, we conclude that the verdict is not against the weight of the evidence (see id.). In a case such as this, with competing inferences regarding possession, "resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses" (People v. Hernandez, 288 A.D.2d 489, 490, lv denied 97 N.Y.2d 729). In light of defendant's criminal history, including the prior conviction based on defendant's illegal possession of a firearm, the court did not abuse its discretion in denying defendant's request for youthful offender status (see generally People v. Shrubsall, 167 A.D.2d 929, 929-930).