People v Mamone (Michael)

[*1] People v Mamone (Michael) 2005 NYSlipOp 50558(U) Decided on April 15, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 15, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: April 15, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
2004-791 W CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

MICHAEL A. MAMONE, Appellant.

Appeal by defendant from a judgment of the Justice Court, Village of Croton-on-Hudson, Westchester County (G. Adami, J.), rendered May 5, 2004, after a bench trial, convicting him of harassment in the second degree (Penal Law § 240.26 [1]) and imposing sentence.

Judgment of conviction unanimously affirmed.

The crux of the case at bar concerns the credibility of the witnesses. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions of fact to be determined by the trier of fact, which saw and heard the witnesses (see People v Gaimari, 176 NY 84 [1903]). Herein, the complainant testified, inter alia, that she was struck in the back with a shopping cart and when she turned around, she saw defendant behind her with a cart, at which time defendant spat on her face, arm and leg. Defendant testified, inter alia, that he did not hit the complainant with a cart and did not spit on her. Inasmuch as the trial court was in the best position to determine the credibility of the witnesses, its determination will not be disturbed since it is not clearly unsupported by the record (see e.g. People v Garafolo, 44 AD2d 86 [1974]), and we are satisfied that the verdict was not against the weight of the evidence (see CPL 470.15 [5]). Moreover, contrary to defendant's contention, nothing in the record indicates that the court inappropriately amended the accusatory instrument.
Decision Date: April 15, 2005