People v. McCain

211 A.D.2d 646, 620 N.Y.S.2d 489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1995
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Scarpino, J.), rendered August 4, 1993, convicting him of criminal possession of a weapon in the third degree and attempted assault in the second degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The evidence, when viewed in the light most favorable to the People, is legally sufficient to prove the defendant’s guilt beyond a reasonable doubt (see, People v Contes, 60 NY2d 620). Moreover, upon exercise of our factual review power, we find that the verdict is not against the weight of the evidence (see, CPL 470.15; People v Bleakley, 69 NY2d 490).

There is no merit to the defendant’s contention that the County Court’s verdict is inconsistent. The defendant was charged with two counts of assault in the second degree and two counts of criminal possession of a weapon in the third degree in connection with his March 6, 1992, attack of the complainant. The defendant attempted to stab the complainant with a butcher knife, and, after the blade of the knife broke, he attempted to beat the complainant with the handle of the knife. The record clearly establishes that the trial court found the defendant guilty of attempted assault in the second degree with respect to the defendant’s use of the knife, not the knife handle. Thus, the defendant’s conviction of attempted assault in the second degree is not inconsistent with his acquittal of the charge of criminal possession of a weapon in the third degree with respect to the knife handle.

The defendant’s remaining contentions are either unpreserved for appellate review (see, CPL 470.05 [2]), or without merit. Miller, J. P., Lawrence, Ritter and Santucci, JJ., concur.