People v. Gambetta

Appellate Division of the Supreme Court of New York

People v. Gambetta

33 A.D.3d 537, 822 N.Y.S.2d 450

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 26, 2006

StatusPublished

Cited by1 cases

This text of 33 A.D.3d 537 (People v. Gambetta) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Gambetta, 33 A.D.3d 537, 822 N.Y.S.2d 450 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered November 4, 2005, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of three years’ probation, 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 jury’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). Defendant was properly convicted of reckless assault (Penal Law § 120.00 [2]). The evidence supported the conclusion that when defendant threw the victim onto the floor he acted recklessly but without a specific intent to cause physical injury (see e.g. People v Cameron, 123 AD2d 325 [1986]). Furthermore, the People disproved defendant’s justification defense beyond a reasonable doubt.

Defendant’s challenge to the court’s justification charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find it to be without [538]*538merit. The court’s charge clearly informed the jury that the defense of justification applied to both counts of assault. Concur—Andrias, J.E, Gonzalez, Sweeny and Catterson, JJ.

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Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered November 4, 2005, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of three years’ probation, 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 jury’s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). Defendant was properly convicted of reckless assault (Penal Law § 120.00 [2]). The evidence supported the conclusion that when defendant threw the victim onto the floor he acted recklessly but without a specific intent to cause physical injury (see e.g. People v Cameron, 123 AD2d 325 [1986]). Furthermore, the People disproved defendant’s justification defense beyond a reasonable doubt.

Defendant’s challenge to the court’s justification charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find it to be without [538]*538merit. The court’s charge clearly informed the jury that the defense of justification applied to both counts of assault. Concur—Andrias, J.E, Gonzalez, Sweeny and Catterson, JJ.

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Bluebook (online)

33 A.D.3d 537, 822 N.Y.S.2d 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gambetta-nyappdiv-2006.

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