People v Johnson
2009 NY Slip Op 08498 [67 AD3d 560]
November 19, 2009
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent,
Michael Johnson, Appellant.

[*1] Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Joseph Dawson, J.), rendered March 26, 2008, convicting defendant, after a jury trial, of assault in the first degree, criminal possession of a weapon in the fourth degree, aggravated harassment in the second degree, attempted assault in the third degree and menacing in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 12½ years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Moreover, we find the evidence to be overwhelming. There is no basis for disturbing the jury's determinations concerning credibility. Notwithstanding the victim's drug and alcohol abuse, she provided credible testimony that it was defendant, her former boyfriend, who caused her injuries. The evidence, including the fact that the injuries consisted of a severed jugular vein and a separate stab wound to the arm, completely refuted any hypothesis that she accidentally stabbed herself. We do not find anything particularly significant about the fact that she may have used the word accident to mean incident.

The court properly exercised its discretion in denying defendant's mistrial motions, made when, at several junctures in her testimony, the victim volunteered uncharged crimes evidence that was not responsive to questions. The drastic remedy of a mistrial was not warranted, because the curative actions that were either provided by the court, or offered by the court but [*2]rejected by defendant, were sufficient to prevent defendant from being prejudiced (see People v Santiago, 52 NY2d 865 [1981]; People v Young, 48 NY2d 995 [1980]). Concur—Andrias, J.P., Sweeny, Nardelli, Catterson and DeGrasse, JJ.