                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 10, 2015                   106516
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

RADHEYA MATHEWS,
                    Appellant.
________________________________


Calendar Date:   October 14, 2015

Before:   Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.

                             __________


     Catherine A. Barber, Albany, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered June 17, 2013, upon a verdict
convicting defendant of the crimes of attempted murder in the
second degree, assault in the first degree and criminal
possession of a weapon in the second degree.

      Following a jury trial in 2013, defendant was convicted of
attempted murder in the second degree, assault in the first
degree and criminal possession of a weapon in the second degree
stemming from an incident on June 14, 2011 at the apartment of
Challana Dobbs, during which defendant shot Riley Ritter
(hereinafter the victim) in the chest. Defendant was sentenced
as a second felony offender to a prison term of 25 years, with
five years of postrelease supervision. Defendant appeals.
                              -2-                106516

      We affirm. We are unpersuaded by defendant's assertions
that the verdict was legally insufficient and against the weight
of the evidence for failing to establish his identity as the
perpetrator. Dobbs testified that she lived in the apartment
with her two children, fathered by defendant, and a child
(hereinafter the child) from a different relationship. The
incident occurred at around 7:00 a.m., while the victim and Dobbs
were in bed, when she awakened to find a person standing in the
doorway. Although the victim was unable to identify defendant,
Dobbs testified that it was defendant standing in the bedroom.
Both the victim and Dobbs testified that defendant angrily
questioned why the victim was in the house when defendant's
children were present. Within moments, as the victim stood by
the bed, defendant shot him. By his account, the next thing the
victim remembered was waking up in the hospital. Dobbs testified
that the victim ran into the kitchen and was pursued by
defendant, who proceeded to strike him in the head with the gun.
The child testified that she heard the commotion, looked out her
bedroom doorway and saw defendant chasing the victim into the
kitchen, while striking him with the gun. She testified that
defendant motioned for her to "shush" before exiting the
apartment. Dobbs called 911, and the police arrived to find the
victim unconscious on the kitchen floor, bleeding from a chest
wound. Notably, defendant acknowledged during a subsequent phone
call with Dobb's mother that he shot the victim because he had
warned Dobbs not to have other men around his children. This
direct testimony and admission was more than sufficient to
establish defendant's identity as the shooter. While defendant
challenged the credibility of both the victim and Dobbs, based on
their criminal records and purported involvement with drugs, the
credibility of these witnesses was within the province of the
jury to assess (see People v Launder, 132 AD3d 1151, 1153 [2015];
People v Richards, 124 AD3d 1146, 1147 [2015], lv denied 25 NY3d
992 [2015]; People v Wingo, 103 AD3d 1036, 1037 [2013], lv denied
21 NY3d 1021 [2013]).

      The remaining elements of each offense were readily
established. Having fired a gun at the victim's chest from a
short range within the bedroom, the jury could readily infer that
defendant acted with the intent to cause the death of the victim,
as required for the attempted murder charge (see Penal Law
                              -3-                106516

§ 125.25 [1]; People v Holmes, 129 AD3d 1692, 1693-1694 [2015],
lv denied 26 NY3d 968 [2015]; People v King, 124 AD3d 1064, 1065-
1066 [2015], lv denied 25 NY3d 1073 [2015]). Similarly, the jury
could find that defendant intended to cause serious physical
injury, as required for the assault in the first degree charge
(see Penal Law § 10.00 [10]; People v Heyliger, 126 AD3d 1117,
1117-1119 [2015], lv denied 25 NY3d 1165 [2015]; compare People v
Daniels, 97 AD3d 845, 847 [2012], lv denied 20 NY3d 931 [2012];
People v Gray, 30 AD3d 771, 772-773 [2006], lv denied 7 NY3d 848
[2006]). The physician who performed emergency surgery on
defendant testified that he had sustained a life threatening
injury, satisfying the "serious physical injury" element.
Finally, the evidence clearly confirmed that defendant possessed
and used an operable gun to shoot the victim, establishing the
elements necessary for a conviction of criminal possession of a
weapon in the second degree (see Penal Law § 265.03 [1] [b]).

      County Court did not err in denying defendant's motion for
a mistrial. The motion was prompted when Steven Nelson, the
police officer who responded to the scene, was asked on direct
examination whether he knew defendant "by face" and Nelson
responded, "I recognized his photo when I looked it up." While
defendant maintains that the response was suggestive of a "mug
shot" and thus a prior arrest, County Court promptly intervened
before any further testimony could be given and offered to
provide a curative instruction directing the jury to disregard
the comment (see People v Yontz, 116 AD3d 1242, 1244 [2014], lv
denied 23 NY3d 1026 [2014]). County Court acted within its
discretion in refusing defendant's request for an alternative
instruction that Nelson could have looked up the photograph in a
motor vehicle database since there was no such testimony. As
defendant then declined a curative instruction, we find no merit
to his argument that he was deprived of a fair trial due to
Nelson's isolated comment (see People v Young, 48 NY2d 995, 996
[1980]; People v Manchester, 123 AD3d 1285, 1287-1288 [2014], lv
denied 26 NY3d 931 [2015]; People v Brown, 106 AD3d 755, 755
[2013], lv denied 22 NY3d 954 [2013]).

      County Court did not abuse its discretion in denying
defendant's request to adjourn the trial in order to recall Dobbs
to the stand to allow further questioning regarding the clothing
                              -4-                  106516

of the shooter. The application was prompted when defendant's
trial counsel apparently was provided with the photograph of an
individual, obtained from a nearby school camera system,
depicting a person in dark clothing sitting on a bench around the
time of the incident. When asked for an offer of proof,
counsel's stated objective was to ask Dobbs whether that person
resembled the shooter. As duly noted by County Court, the
identification of defendant as the shooter was not based on his
clothing, but on the fact that both Dobbs and the child
personally knew him. Moreover, Dobbs had already testified that
she did not recall what clothing defendant was wearing. As such,
we perceive no prejudice to defendant in the denial of his
adjournment request (see People v Peterkin, 81 AD3d 1358, 1360
[2011], lv denied 17 NY3d 799 [2011]).

      Finally, while we recognize the sentence imposed was the
maximum (see Penal Law §§ 70.06 [1] [a]; [3] [a]), we cannot say
that the sentence was harsh or excessive. Given defendant's
unprovoked, violent conduct and a criminal history involving two
prior weapons convictions, we perceive no abuse of discretion or
extraordinary circumstances warranting a modification of the
sentence.

     Lahtinen, J.P., McCarthy and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
