        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

8
KA 13-00072
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN N. MAY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie county (Deborah
A. Haendiges, J.), rendered December 19, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the third degree, and,
upon a plea of guilty, of criminal possession of a weapon in the third
degree.

     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 third degree (Penal Law § 120.00
[1]) and upon a guilty plea of criminal possession of a weapon in the
third degree (§ 265.02 [1]). Viewing the evidence in the light most
favorable to the People (see People v Williams, 84 NY2d 925, 926), we
reject defendant’s contention that the evidence is legally
insufficient to support the conviction of assault (see generally
People v Bleakley, 69 NY2d 490, 495). While there were some
inconsistencies in the testimony of the victim, she was steadfast in
her testimony that defendant, her long-term boyfriend, assaulted her,
and the jury was entitled to credit that testimony (see People v
Kelly, 34 AD3d 1341, 1342, lv denied 8 NY3d 847). Viewing the
evidence in light of the elements of that crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we likewise conclude that,
although an acquittal would not have been unreasonable, the verdict is
not against the weight of the evidence (see Bleakley, 69 NY2d at 495).
We note that “[r]esolution 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” (People v Witherspoon, 66 AD3d
1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]),
and we perceive no reason to disturb the jury’s resolution of those
issues in this case.
                                 -2-                             8
                                                         KA 13-00072

     Contrary to defendant’s contention, reversal is not required on
the ground that the victim testified beyond the scope of Supreme
Court’s Ventimiglia ruling. The victim volunteered that information,
and the court issued a curative instruction to the jurors, directing
them not to consider that testimony (see People v Holton, 225 AD2d
1021, 1021, lv denied 88 NY2d 986; see also People v Thigpen, 30 AD3d
1047, 1048, lv denied 7 NY3d 818). The court did not abuse its
discretion in allowing the victim to testify regarding prior bad acts
that occurred during the assault on the victim inasmuch as that
testimony “was inextricably interwoven with the evidence of the
charged crime, it was necessary to comprehend that evidence . . . and
its probative worth exceeded its prejudicial effect” (People v Robb,
23 AD3d 1116, 1117, lv denied 6 NY3d 780 [internal quotation marks
omitted]).

     We reject defendant’s contention that the court erred in refusing
to allow prior inconsistent statements of the victim in evidence.
“The substance of th[ose] prior statement[s] was admitted in evidence
through defense counsel’s cross-examination of that witness” (People v
Lewis, 277 AD2d 1022, 1022, lv denied 96 NY2d 802; see People v
Hendrix, 270 AD2d 958, 958, lv denied 95 NY2d 853). The court
properly denied defendant’s request for a missing witness instruction
inasmuch as he failed to demonstrate that the witnesses “ ‘would
naturally be expected to provide noncumulative testimony favorable to
the [prosecution]’ ” (People v Williams, 202 AD2d 1004, 1004, quoting
People v Kitching, 78 NY2d 532, 536; see People v Edwards, 14 NY3d
733, 735).

     Contrary to defendant’s contention, the court properly denied his
Batson challenge with respect to two prospective jurors. Defendant
failed to meet his prima facie burden of establishing that the
prosecutor exercised the peremptory challenges in a discriminatory
manner (see generally People v Smocum, 99 NY2d 418, 421). Defendant’s
assertions “that the prospective jurors ‘indicated no reason why they
could not serve fairly’ are, standing alone, generally insufficient to
establish a prima facie case of discrimination” (People v MacShane, 11
NY3d 841, 842). We have considered defendant’s remaining contentions
and conclude that they are without merit.




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
