Opinion
1130 KA 17–01067
03-20-2020
The PEOPLE of the State of New York, Respondent, v. Jamie URRUTIA, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER 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 first degree ( Penal Law § 120.10 [1] ). Defendant contends that Supreme Court erred in denying his motion for a mistrial after one of the prosecutors, in violation of the court's prior ruling, improperly cross-examined the codefendant's witness regarding defendant's participation in the crime. We reject that contention. "[T]he decision to grant or deny a motion for a mistrial is within the trial court's discretion" ( People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 [1981] ). Here, the court did not abuse its discretion in denying defendant's motion for a mistrial and instead providing the jury with a curative instruction directing them to disregard the improper testimony, which "the jury is presumed to have followed" ( People v. DeJesus, 110 A.D.3d 1480, 1482, 973 N.Y.S.2d 512 [4th Dept. 2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 639, 7 N.E.3d 1127 [2014] ; see People v. Johnson, 118 A.D.3d 1502, 1502–1503, 988 N.Y.S.2d 385 [4th Dept. 2014], lv denied 24 N.Y.3d 1120, 3 N.Y.S.3d 762, 27 N.E.3d 476 [2015] ).
Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct based on the improper cross-examination of the codefendant's witness and allegedly improper comments made by the other prosecutor during summation. Defendant's contention is preserved for our review only in part inasmuch as he did not object to the alleged improprieties during summation (see People v. Lewis, 154 A.D.3d 1329, 1330, 63 N.Y.S.3d 156 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ; People v. Kerce, 140 A.D.3d 1659, 1660, 32 N.Y.S.3d 780 [4th Dept. 2016], lv denied 28 N.Y.3d 1028, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ). In any event, defendant's contention is without merit inasmuch as "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" ( Kerce, 140 A.D.3d at 1660, 32 N.Y.S.3d 780 [internal quotation marks omitted] ).
Although we conclude that reversal is not warranted on the abovementioned grounds, we nevertheless take this opportunity to admonish the prosecutors and remind them that "prosecutors have ‘special responsibilities ... to safeguard the integrity of criminal proceedings and fairness in the criminal process’ " ( People v. Huntsman, 96 A.D.3d 1387, 1388, 946 N.Y.S.2d 327 [4th Dept. 2012], lv denied 20 N.Y.3d 1099, 965 N.Y.S.2d 795, 988 N.E.2d 533 [2013], quoting People v. Santorelli, 95 N.Y.2d 412, 421, 718 N.Y.S.2d 696, 741 N.E.2d 493 [2000] ).
Viewing the evidence in light of the elements of the crime 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 conclude that the verdict is not 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] ). "[T]he jury was in the best position to assess the credibility of the witnesses" ( People v. Carrasquillo, 170 A.D.3d 1592, 1593, 96 N.Y.S.3d 436 [4th Dept. 2019], lv denied 33 N.Y.3d 1029, 102 N.Y.S.3d 512, 126 N.E.3d 162 [2019] [internal quotation marks omitted]; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ) and, contrary to defendant's contention, "minor inconsistencies in the testimony of the People's witnesses do not render the verdict against the weight of the evidence" ( People v. McAvoy, 70 A.D.3d 1467, 1468, 894 N.Y.S.2d 270 [4th Dept. 2010], lv denied 14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010] ).
Defendant contends that, in light of a statement made by the prosecutor during summation, the court erred in its jury instruction by failing to identify the specific type of dangerous instrument allegedly used by defendant during the assault. That contention is not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). Finally, the sentence is not unduly harsh or severe.