Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ira H. Margulis, J.), rendered July 10, 2009. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

The People charged defendant, in an information, with assault in the third degree (Penal Law * 120.00 [1]), criminal contempt in the second degree (Penal Law * 215.50 [3]), and harassment in the second degree (Penal Law * 240.26 [1]) based on an incident on December 8, 2008, during which defendant allegedly struck his spouse, thereby also violating an order of protection. The charges of assault in the third degree and criminal contempt in the second degree were reduced to the attempts to commit those offenses (see Penal Law * 110.00) and, after a nonjury trial, defendant was convicted of harassment in the second degree and acquitted of the remaining counts.

On appeal, defendant argues that, because his spouse was not a credible witness, the verdict was against the weight of the evidence; that the Criminal Court violated his due process rights by not allowing a caseworker, who had investigated a prior domestic incident involving defendant and his spouse, to testify that certain of the spouse's trial testimony with respect to that prior incident was false, and by barring defendant's counsel from cross-examining defendant's spouse as to her alleged history of filing false charges against "other men"; and that the Criminal Court should have recused itself, on its own motion, after learning, in the midst of trial, that defendant had been arrested for violating an order of protection it had issued on the spouse's behalf. These contentions are either unpreserved or without merit.

First, although defendant raises his evidentiary sufficiency claim with reference to the weight of the evidence, the argument, in essence, is that defendant's spouse was unworthy of belief as a matter of law. However, this claim, one of legal sufficiency, is not preserved for appellate review (CPL 470.05 [2]; People v Gaston, 100 AD3d 1463, 1464 [2012]; People v Carlucci, 80 AD3d 621, 622 [2011]; People v Gallegos, 30 Misc 3d 138[A], 2011 NY Slip Op 50214[U] [App Term, 2d, 11th, & 13th Jud Dists 2011]).

In any event, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), the evidence was legally sufficient to support the conviction of harassment in the second degree. The record does not support defendant's contention that the [*2]spouse's purported motives to lie and the inconsistencies within her testimony and between her present and prior statements rendered her testimony "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (People v Lynch, 63 AD3d 959, 961 [2009], quoting People v Garafolo, 44 AD2d 86, 88 [1974]; see also People v Calabria, 3 NY3d 80, 82 [2004] [typically, incredibility as a matter of law arises " [w]hen all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence' "], quoting People v Jackson, 65 NY2d 265, 272 [1985]). Accordingly, resolution of these issues was for the finder of fact (e,g. People v Green, 107 AD3d 915 [2013]), who is empowered to determine "what portion of [the] testimony to accept and the weight such testimony should be given" (People v Negron, 91 NY2d 788, 792 [1998]).

Furthermore, in fulfilling our responsibility to independently review the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), and giving due consideration to the trial court's opportunity to "view the witnesses, hear the testimony and observe demeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Lane, 7 NY3d 888, 890 [2006] ["whether the finder of fact was a judge or a jury . . . those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record"]), we find that it cannot be said that the verdict of guilt of harassment in the second degree was against the weight of the evidence (see e.g. People v Wallace, 53 AD3d 795, 797 [2008] ["Credibility is generally an issue for the trier of fact whose province it is to believe all or part of a witness's testimony, even though it is at times confusing and inconsistent"] [internal quotation marks and citation omitted]; People v Jones, 141 AD2d 667, 668 [1988] [same]). Here, while the Criminal Court explicitly declined to accept all of Ms. Shannon's testimony as truthful or accurate, it credited so much of her testimony and that of the other prosecution witnesses as was necessary to establish the elements of harassment in the second degree, namely that defendant, "with intent to harass, annoy or alarm" Ms. Shannon, had struck, shoved, kicked or otherwise subjected her to physical contact, or attempted or threatened to do the same (Penal Law * 240.26 [1]; see People v Chiddick, 8 NY3d 445, 448 [2007] [harassment in the second degree is committed by "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives"] [internal quotation marks and citation omitted]). Further, material aspects of the spouse's testimony were corroborated by the red mark on her cheek that had been observed by others (caused by a "slap," an investigating officer concluded), her expressions of fear and distress, and defendant's own testimony as to details of the incident that underlay the charges against him. The spouse's testimony that, as a result of the blow, she experienced pain when she attempted to chew and to sleep on her right side was consistent with the level of harm associated with harassment in the second degree (see Chiddick, 8 NY3d at 448; People v Balan, 25 Misc 3d 88, 89 [App Term, 1st Dept 2009]).

We also find that the Criminal Court did not improvidently exercise its discretion in precluding the defense from producing as a witness a caseworker who had investigated a prior incident involving defendant and his spouse, to contradict the spouse's trial testimony as to her opinion of defendant's nature and his conduct as a spouse and parent. We recognize that a "motive to lie about the very facts surrounding the crime charged is never collateral" (People v Rios, 223 AD2d 390, 391 [1996]) and that "extrinsic proof tending to establish a reason to [*3]fabricate . . . may not be excluded on that ground" (People v Hudy, 73 NY2d 40, 56 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]). Further, the broad discretion accorded a trial court "to keep the proceedings within manageable limits and to curtail exploration of collateral matters" is "circumscribed by the defendant's constitutional rights to present a defense and confront his accusers" (People v Hudy, 73 NY2d at 56-57). Nevertheless, a motive to fabricate with respect to the material issues to be determined at the trial may not be established by the use of extrinsic evidence to impeach a witness on a matter collateral to those issues (People v Knight, 80 NY2d 845, 847 [1992]; People v Seabrook, 76 AD3d 606 [2010]). Here, the testimonial representations sought to be impeached were matters collateral to whether defendant harassed his spouse on December 8, 2008. Similarly, the Criminal Court properly barred the defense from introducing evidence purporting to show that the spouse had previously made false accusations of domestic violence with respect to other men in her life (see People v Clarkson, 78 AD3d 1573, 1574 [2010]).

Defendant's claim that the Criminal Court should have recused itself because, in the midst of trial, the court learned that defendant had been arrested on a related matter is not preserved for appellate review (CPL 470.05 [2]; People v Lebron, 305 AD2d 799, 800 [2003]; People v Whitehead, 305 AD2d 286 [2003]). In any event, the Criminal Court's "failure" sua sponte to recuse itself was not an improvident exercise of discretion. As was stated in People v Angel (39 Misc 3d 149[A], 2013 NY Slip Op 50946[U], *3 [App Term, 9th & 10th Jud Dists 2013]):

" [A]s a matter of due process, [recusal] is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion . . . or where a clash in judicial roles is seen to exist' (People v Alomar, 93 NY2d 239, 246 [1999]). Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal' (People v Moreno, 70 NY2d 403, 405 [1987]; see also People ex rel. Smulczeski v Smulczeski, 18 AD3d 785, 786 [2005]; People v Washington, 11 Misc 3d 130[A], 2006 NY Slip Op 50312[U] [App Term, 9th & 10th Jud Dists 2006]), whose decision to deny a recusal motion will not be lightly overturned' (Matter of Khan v Dolly, 39 AD3d 649, 650 [2007])."

Moreover, while observing that "judges are human" (People v Best, 19 NY3d 739, 744 [2012]), the Court of Appeals agreed with the Appellate Term that, "[u]nlike a lay jury, a Judge . . . is uniquely capable of . . . making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision" (id. at 744, quoting People v Best, 31 Misc 3d 141[A], 2011 NY Slip Op 50826[U] [App Term, 9th & 10th Jud Dists 2011]; see People v Moreno, 70 NY2d 403, 406 [1987]). Defendant identifies no statutory basis for the Criminal Court's disqualification, and the available facts do not support an inference that the information regarding defendant's arrest represented an interest or knowledge that would invite a particular outcome in this case (see also Matter of Montesdeoca v Montesdeoca, 38 AD3d 666, 667 [2007]).

Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 16, 2013