NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT
April 30, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ALEX J. HEARD, APPELLANT.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), rendered May 3, 2007. The judgment convicted defendant, upon a non-jury verdict, of assault in the second degree.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 9, 2010
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him, upon a non-jury verdict, of assault in the second degree (Penal Law § 120.05 ). Defendant failed to preserve for our review his contention that the indictment is duplicitous (see People v Backus, 67 AD3d 1428, 1429 , lv denied 13 NY3d 936 ), 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  [a]). Viewing the evidence in light of the elements of the crime in this non-jury trial (see People v Danielson, 9 NY3d 342, 349 ), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 ).
Present---Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.
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