People v. Elijah B.

28 A.D.3d 312, 813 N.Y.S.2d 405

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 2006
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Robert L. Cohen, J.), rendered on or about January 28, 2003, convicting defendant, after a nonjury trial, of assault in the second degree and criminal possession of a weapon in the fourth degree, adjudicating him a youthful offender, and sentencing him to an aggregate term of 5 years’ probation and 75 hours of community service, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). Under the circumstances of their use, the work boots with which defendant kicked the prone victim constituted a dangerous instrument (see People v Carter, 53 NY2d 113, 116 [1981]; People v Taylor, 276 AD2d 933 [2000], lv denied 96 NY2d 788 [2001]; People v Lappard, 215 AD2d 245 [1995], lv denied 86 NY2d 737 [1995]). Concur— Andrias, J.P., Saxe, Nardelli, Catterson and Malone, JJ.