People v. Kendra

83 A.D.3d 1561, 921 N.Y.S.2d 602

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2011
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered December 8, 2009. The judgment convicted defendant, after a nonjury trial, of assault in the second degree (two counts) and endangering the welfare of a child.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her following a nonjury trial of two counts of assault in the second degree (Penal Law § 120.05 [2], [9]) and one count of endangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for our review her contention that the conviction is not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19 [1995]). Furthermore, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

Defendant correctly concedes that she failed to preserve for our review her contention that the conviction of endangering the welfare of a child is barred by the merger doctrine (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Smith, 262 AD2d 1063 [1999], lv denied 93 NY2d 1027 [1999]). Present—Scudder, P.J., Centra, Carni, Sconiers and Green, JJ.