People v. Gasca

216 A.D.2d 138, 629 N.Y.S.2d 2, 1995 N.Y. App. Div. LEXIS 6581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 1995
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Lawrence Tonetti, J.), rendered November 29, 1993, which convicted defendant, after a jury trial, of assault in the first degree and sentenced him to a term of 3 to 9 years, unanimously affirmed.

Viewing the evidence adduced at trial in a light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, cert denied 469 US 932), defendant’s conviction for assault in the first degree was proven beyond a reasonable doubt. Moreover, upon an independent review of the facts, the verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490). The victim’s testimony that defendant deliberately aimed his weapon at his head, demanded a gold chain, and fired the gun into the victim’s face sufficed as a matter of law to establish that defendant intended to seriously injure him (People v Bracey, 41 NY2d 296, 301; People v Vasquez, 209 AD2d 203). Defendant’s arguments regarding the victim’s credibility were properly placed before the jury, and we find no reason to disturb its determination.

Relying on People v Antommarchi (80 NY2d 247), defendant claims that a portion of the court’s reasonable doubt charge imposed upon the jury an affirmative duty to articulate their doubt regarding defendant’s guilt to their fellow jurors and therefore shifted the burden of proof to the defense. This claim is unpreserved and we decline to reach it in the interest of justice. Lastly, we find no abuse of discretion by the sentencing court. Concur—Sullivan, J. P., Rosenberger, Ellerin, Rubin and Mazzarelli, JJ.