SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 20, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Justice Court of the Town of Cortlandt, Westchester County (Gerald M. Klein, J.), rendered June 23, 2008.
People v Roppoccio (George)
Decided on January 20, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
The judgment, upon a jury verdict, convicted defendant of assault in the third degree and sentenced him to three years' probation.
ORDERED that the judgment of conviction is affirmed.
In this prosecution for assault in the third degree (Penal Law § 120.00 ), defendant sought a trial order of dismissal at the close of the People's case but failed to renew the motion after presenting evidence. Thereafter, the jury convicted him of the offense charged.
In our view, defendant waived subsequent review of the denial of his motion to dismiss (see People v Montana, 298 AD2d 934 ). In any event, we are of the opinion that the evidence, when viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 ), was legally sufficient to establish defendant's guilt of assault in the third degree beyond a reasonable doubt. The record demonstrates that defendant had the requisite intent (see Matter of Jose B., 47 AD3d 461 ; People v Mahoney, 6 AD3d 1104 ) and caused physical injury to the complainant (see People v Chiddick, 8 NY3d 445 ).
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 accord great deference to the factfinder's opportunity at the trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Mateo, 2 NY3d 383 ). There was no testimony to dispute the testimony offered by the complainant and his wife that defendant had knocked the complainant to the ground and had punched him repeatedly, or the complainant's testimony that defendant had bitten the complainant's finger. One witness testified that he had seen the complainant going after defendant, rather than the other way around, but that witness had not actually seen the fight. Accordingly, we find that the verdict was not against the weight of the evidence.
We further find that the Justice Court did not abuse its discretion in imposing conditions on the sentence of three years' probation, as the conditions were recommended by the pre-sentence report and defendant did not argue at the sentencing hearing that the conditions should not be imposed.
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
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