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The People of the State of New York v. Gershon Aizikowich

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 2nd, 11th and 13th JUDICIAL DISTRICTS


December 21, 2010

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
GERSHON AIZIKOWICH,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J.), rendered December 10, 2008. The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree, menacing in the third degree, and harassment in the second degree.

People v Aizikowich (Gershon)

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2010

PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ

ORDERED that the judgment of conviction is affirmed.

Following a non-jury trial, defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.26).

Although defendant objected on other grounds, he failed to preserve his contention that the Criminal Court erroneously allowed the police officer to testify regarding what she was told by the complainant and the complainant's mother, as well as allowing the officer to describe the emotional state of these witnesses, thereby improperly bolstering the testimony of the People's witnesses (see CPL 470.05 [2]; People v Leon, 61 AD3d 776, 777 [2009]; People v Vargas, 155 AD2d 565, 566 [1989]). We decline to review this contention in the interest of justice. Likewise, defendant's contention that the court committed reversible error by not holding a charge conference and by not indicating the specific justification charge it would consider in rendering its verdict (see CPL 320.20 [5]), is unpreserved for appellate review and we decline to address it in the interest of justice.

Defendant's contention that he received the ineffective assistance of counsel - - in that his attorney did not obtain his certified medical records, did not attempt to analyze the blood found at the scene, and did not investigate whether he had been illegally evicted - - is based on matters dehors the record, which cannot be reviewed on direct appeal (see People v Haynes, 70 AD3d 718 [2010]; People v Gallo, 54 AD3d 964, 965 [2008]). Insofar as review is possible, defendant contends that he received the ineffective assistance of counsel in that his attorney should not have introduced the CD of the 911 call into evidence, should have introduced his arrest photograph into evidence, and failed to use defendant's hospital records to refresh defendant's recollection at trial because he had not previously provided the records to the People. We find that defendant's attorney provided him with meaningful representation (see People v Henry, 95 NY2d 563 [2000]; People v Benevento, 91 NY2d 708, 712 [1998]) as defendant did not meet his burden of "demonstrat[ing] the absence of strategic or other legitimate explanations" for defense counsel's alleged shortcomings (People v Garcia, 75 NY2d 973, 974 [1990]; see also People v Williams, 48 AD3d 1108, 1109 [2008]).

Moreover, defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]). In any event, we find that the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt beyond a reasonable doubt of attempted assault in the third degree, menacing in the third degree, and harassment in the second degree. Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is to be decided by the trier of fact, which had the opportunity to see and hear the witnesses (see People v Romero, 7 NY3d at 643-646), and its determination should be given great deference and should not be disturbed unless it appears that the trier of fact failed to give the evidence the weight it should be accorded (see People v Lane, 7 NY3d 888 [2006]).

Accordingly, the judgment of conviction is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur. Decision

December 21, 2010

20101221

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