SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
June 30, 2009
THE PEOPLE, ETC., RESPONDENT,
VINCENT ARTIS, APPELLANT.
Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered August 16, 2006, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS and L. PRISCILLA HALL, JJ.
(Ind. No. 05-00552)
DECISION & ORDER
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of assault in the second degree beyond a reasonable doubt (see Penal Law § 120.05). In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The court did not err in denying the defendant's request to charge assault in the third degree (Penal Law § 120.00) as a lesser-included offense. Although that crime is a lesser-included offense of the crime of which the defendant was convicted, assault in the second degree (see People v Thomas, 56 AD3d 1241; see generally People v Green, 56 NY2d 427), viewing the evidence in the light most favorable to him (see People v Randolph, 81 NY2d 868, 869), there was no reasonable view of the evidence here to support a finding that the defendant did not intend to cause the victim physical injury but, rather, acted recklessly and thereby created "a substantial and unjustifiable risk" that the victim would sustain a physical injury (Penal Law § 15.05; People v Joseph, 271 AD2d 698, 699; cf. People v Thomas, 56 AD3d at 1241-1242).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
The defendant's remaining contentions, raised in points three and four of his brief, are without merit.
SPOLZINO, J.P., ANGIOLILLO, CHAMBERS and HALL, JJ., concur.
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