         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
10
KA 10-01941
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

DAVID J. DITUCCI, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK A. ALOI, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Elma A.
Bellini, J.), rendered July 31, 2008. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree and
criminal contempt in the first degree (two counts).

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence on the conviction of assault in the second
degree is unanimously dismissed and the judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of assault in the second degree
(Penal Law § 120.05 [2]) and two counts of criminal contempt in the
first degree (§ 215.51 [b] [v]; [c]). Contrary to defendant’s
contention, County Court’s Molineux ruling was not an abuse of
discretion (see People v Dorm, 12 NY3d 16, 19; People v Gorham, 17
AD3d 858, 860-861). The record reflects that “[t]he court
meticulously weighed the probative value of each incident against the
potential for prejudice and limited or excluded numerous relevant
incidents due to their prejudicial nature” (Gorham, 17 AD3d at 860).
Contrary to defendant’s further contention, viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495). Any inconsistencies in the victim’s testimony were
highlighted by defense counsel, and the jury’s resolution of
credibility issues with respect to the testimony of the victim is
entitled to great deference (see People v McFarley, 77 AD3d 1282). We
also reject the contention of defendant that he was denied his right
of confrontation based on the court’s denial of his motion to
disqualify the prosecutor and his application to call the prosecutor
as a witness in order to question the prosecutor on the issue of her
alleged influence over the victim. Defense counsel was free to cross-
                                 -2-                            10
                                                         KA 10-01941

examine the victim on that issue, and in fact did so (see generally
People v Chin, 67 NY2d 22, 29-30). Defendant’s remaining contentions
with respect to appeal No. 1 are not preserved for our review (see CPL
470.05 [2]) and, in any event, are without merit.

     In appeal No. 2, defendant appeals from a resentence with respect
to the conviction of assault in the second degree, in which the court
additionally imposed a five-year term of postrelease supervision.
Contrary to defendant’s contention, the imposition of the period of
postrelease supervision was proper inasmuch as defendant was sentenced
to a determinate term of imprisonment in appeal No. 1 as a second
felony offender (see Penal Law § 70.06 [6] [c]; § 70.45 [2] [e]).
Finally, we reject defendant’s challenge to the severity of the
sentence and the resentence in appeal Nos. 1 and 2.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
