People v. Kelly

114 A.D.3d 879, 980 N.Y.S.2d 791

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 2014
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered May 5, 2010, convicting him of assault in the second degree, assault in the third degree, and petit larceny, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s argument with respect to the legal sufficiency of the evidence establishing that he used a “dangerous instrument” to injure the complainant as required to support his conviction of assault in the second degree (Penal Law § 120.05 [4]) is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20-21 [1995]), and, in any event, without merit (see People v Cephas, 107 AD3d 821 [2013]; People v Warren, 98 AD3d 634, 637 [2012]; People v Phillips, 256 AD2d 733, 735 [1998]). With respect to the defendant’s remaining arguments regarding the legal sufficiency of the evidence, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish that the defendant committed the crimes of assault in the second degree (Penal Law § 120.05 [4]; see People v Abera, 2 AD3d 1155, 1156 [2003]; People v Di Bella, 277 AD2d 699, 702 [2000]; People v Cunningham, 222 AD2d 727, 728 [1995]; People v Acton, 149 AD2d 839, 841 [1989]), assault in the third degree (Penal Law § 120.00 [1]; see People v Chiddick, 8 NY3d 445, 447 [2007]; People v Bernadotte, 107 AD3d 1012 [2013]; People v Valencia, 50 AD3d 1163 [2008]; People v Berry, 273 AD2d 120, 121 [2000]; People v Brown, 243 AD2d 749 [1997]), and petit larceny (Penal Law § 155.25; see People v Brooks, 79 NY2d 1043, 1045 [1992], cert denied 506 US 899 [1992]; People v Perez, 93 AD3d 1032, 1035-1036 [2012]; People v Livigni, 288 AD2d 323, 324 [2001]).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the fact-finder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt as to all of the crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Dillon, J.E, Balkin, Cohen and Hinds-Radix, JJ., concur.