People v. Carrington

2017 NY Slip Op 8010, 155 A.D.3d 888, 63 N.Y.S.3d 710

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2017
• Docket: 2015-12246
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered December 7, 2015, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to establish his guilt of assault in the second degree beyond a reasonable doubt because the People failed to prove the identity of the object that he threw at the victim. However, the particular identity of the dangerous instrument is not an element of assault in the second degree (see Penal Law § 120.05 [2]; People v Kaid, 43 AD3d 1077, 1082-1083 [2007]). Regardless of which specific object the defendant threw, it constituted a dangerous instrument under the circumstances in which it was used because, upon striking the victim, the object dislodged two of her teeth and damaged her lip so as to require stitches (see Penal Law § 10.00 [13]).

The defendant also contends that the evidence was legally insufficient because the People failed to prove that he intended to cause injury. This contention is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 21 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that there was legally sufficient evidence to infer the defendant’s intent from his conduct and the surrounding circumstances (see People v Steinberg, 79 NY2d 673, 682 [1992]).

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d 633 [2006]).

Dillon, J.P., Sgroi, Hinds-Radix and Iannacci, JJ., concur.