People v. Brescia

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered November 19, 2003, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]). Upon the exercise of our factual review power (see CEL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, supra). Furthermore, the trial court providently exercised its discretion in denying the defendant’s motion for a mistrial based [614] upon the two brief references to his criminal record and prior incarceration made in the testimony adduced at trial (see People v Ortiz, 54 NY2d 288, 292 [1981]). Any prejudice to the defendant that might have resulted from such testimony was alleviated by the trial court’s prompt curative instructions to the jury (see People v Santiago, 52 NY2d 865, 866 [1981]; People v Smith, 23 AD3d 415 [2005]; People v Torres, 302 AD2d 411 [2003]). The defendant’s contention alleging ineffective assistance of counsel is without merit (see People v Baldi, 54 NY2d 137, 151-152 [1981]). The sentence imposed was not excessive (see Penal Law § 70.04 [3] [b]; People v Thompson, 60 NY2d 513, 519 [1983]). The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are without merit. Rivera, J.P., Spolzino, Florio and Angiolillo, JJ., concur.