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

1243
KA 10-01594
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VICTOR GASTON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered May 5, 2010. The judgment convicted
defendant, upon a jury verdict, of assault in the second 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 second degree (Penal Law §
120.05 [2]). Defendant failed to preserve for our review his
contention that the evidence is legally insufficient because the
testimony of the victim was incredible as a matter of law (see People
v Holloway, 97 AD3d 1099, 1099, lv denied 19 NY3d 1026; People v
Brown, 67 AD3d 1369, 1369-1370, lv denied 14 NY3d 886) and, in any
event, that contention is without merit. The victim’s testimony “was
not incredible as a matter of law inasmuch as it was not impossible of
belief, i.e., it was not manifestly untrue, physically impossible,
contrary to experience, or self-contradictory” (People v Harris, 56
AD3d 1267, 1268, lv denied 11 NY3d 925). Viewing the evidence in
light of the elements of the crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s further
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). “Where, as here,
witness credibility is of paramount importance to the determination of
guilt or innocence, [we] must give ‘[g]reat deference . . . [to the
factfinder’s] opportunity to view the witnesses, hear the testimony
and observe demeanor’ ” (People v Harris, 15 AD3d 966, 967, lv denied
4 NY3d 831, quoting Bleakley, 69 NY2d at 495). Although an acquittal
would not have been unreasonable given the inconsistencies in the
victim’s testimony (see People v Kilbury, 83 AD3d 1579, 1580-1581, lv
denied 17 NY3d 860; People v Hill, 74 AD3d 1782, 1782, lv denied 15
NY3d 805), it cannot be said that the jury failed to give the evidence
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                                                         KA 10-01594

the weight it should be accorded (see generally Bleakley, 69 NY2d at
495).

     We reject defendant’s contention that County Court erred in
denying his motion to sever the two assault counts. The two counts
both charged assault in the second degree, although under different
subdivisions, and involved the same victim. Even assuming, arguendo,
that those counts were not properly joinable pursuant to CPL 200.20
(2) (b), we nevertheless conclude that they were properly joinable
pursuant to CPL 200.20 (2) (c) because they “are defined by the same
or similar statutory provision and consequently are the same or
similar in law,” and defendant failed to show good cause for severance
(see CPL 200.20 [3]; see generally People v Mahboubian, 74 NY2d 174,
183). Indeed, the fact that defendant was acquitted of one count
indicates that the jury was able to consider the proof concerning each
count separately (see People v Davis, 19 AD3d 1007, 1007).

     Contrary to defendant’s contention, he was not denied a fair
trial by erroneous evidentiary rulings. The court properly sustained
two objections to irrelevant questions that defense counsel asked the
victim during cross-examination (see generally People v Baker, 294
AD2d 888, 889, lv denied 98 NY2d 708). Defendant failed to preserve
for our review his further contention that certain comments in the
prosecutor’s opening and closing statements deprived him of a fair
trial (see CPL 470.05 [2]; People v Brown, 94 AD3d 1461, 1462, lv
denied 19 NY3d 995), and in any event his contention is without merit.
“Absent bad faith or undue prejudice, reversal is not required because
the prosecutor fails to prove every statement or representation made
during an opening statement” (People v Evans, 242 AD2d 948, 949, lv
denied 91 NY2d 834). The majority of the prosecutor’s comments on
summation to which defendant objects on appeal were within the
“ ‘broad bounds of rhetorical comment permissible in closing
argument’ ” (People v Williams, 28 AD3d 1059, 1061, affd 8 NY3d 854,
quoting People v Galloway, 54 NY2d 396, 399) and, in any event, they
were “ ‘either a fair response to defense counsel’s summation or fair
comment on the evidence’ ” (People v Green, 60 AD3d 1320, 1322, lv
denied 12 NY3d 915). Those comments that were arguably beyond those
bounds and were not fair response or fair comment were not so
egregious as to deprive defendant of a fair trial (see People v
Figgins, 72 AD3d 1599, 1600, lv denied 15 NY3d 893; People v Rivera,
281 AD2d 927, 928, lv denied 96 NY2d 906).

     We reject the contention of defendant that he was denied
effective assistance of counsel. Inasmuch as defendant was not denied
a fair trial by any alleged instances of prosecutorial misconduct,
defense counsel’s failure to object to those comments does not
constitute ineffective assistance of counsel (see People v Lyon, 77
AD3d 1338, 1339, lv denied 15 NY3d 954). In addition, defendant
failed to “demonstrate the absence of strategic or other legitimate
explanations” for defense counsel’s motion to preclude the People from
introducing certain evidence that defendant now claims would have
helped his defense (People v Garcia, 75 NY2d 973, 974). Defendant’s
contention that defense counsel was ineffective in failing to inform
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                                                            KA 10-01594

him in a timely manner of his right to appear and testify before the
grand jury is based on matters outside the record and thus must be
raised by way of a motion pursuant to CPL 440.10 (see People v Bryant,
1 AD3d 966, 966). We have reviewed the remaining instances of alleged
ineffective assistance of counsel raised by defendant and conclude
that he received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).

     Finally, the sentence is not unduly harsh or severe.




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
