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The People of the State of New York v. Richard D. Vause

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 15, 2010

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
RICHARD D. VAUSE,
APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, First District Toni A. Bean, J., rendered July 31, 2009.

People v. Vause (Richard)

Decided on December 15, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The judgment convicted defendant, upon a jury verdict, of menacing in the second degree.

ORDERED that the judgment of conviction is affirmed.

Following a jury trial held in defendant's absence, defendant was convicted of menacing in the second degree (Penal Law § 120.14 [1]). Defendant's contention that the evidence was not legally sufficient to prove his guilt beyond a reasonable doubt - - because there were inconsistencies in the testimony of the witnesses, there was insufficient evidence regarding the distance between defendant and the complainant at the time of the incident, and there was no showing that any witness or the complainant was placed in reasonable fear of sustaining a physical injury - - is unpreserved for appellate review, as defendant failed to specifically so argue at trial (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Gray, 86 NY2d 10, 20-21 [1995]; People v Udzinski, 146 AD2d 245, 250 [1989]).

In any event, defendant's contention has no merit. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of menacing in the second degree beyond a reasonable doubt. The evidence adduced at trial established that defendant displayed what appeared to be a gun to the complainant with the intent of placing her in reasonable fear of physical injury, serious physical injury or death (see Penal Law § 120.14 [1]). While there were some minor inconsistencies in the testimonies of the People's witnesses, these discrepancies did not render their accounts incredible as a matter of law (see People v Baksh, 43 AD3d 1072, 1073 [2007]; People v Almonte, 23 AD3d 392, 393 [2005]).

Furthermore, there is no merit to defendant's contention that the District Court abused its discretion in failing to charge the jury that no inference should be drawn from the fact that defendant was absent from the trial. The record clearly indicates that the court did, in fact, provide the jury with the charge requested by defense counsel regarding defendant's absence, notwithstanding its prior ruling that it would not do so.

Accordingly, the judgment of conviction is affirmed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur. Decision Date: December 15, 2010

20101215

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