Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph Zayas, J.), rendered February 23, 2009.
People v Albertorio (Adam)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree and harassment in the second degree.
ORDERED that the judgment of conviction is affirmed.
The People charged defendant with assault in the third degree (Penal Law § 120.00 ), which charge was later reduced to attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ), as well as with harassment in the second degree (Penal Law § 240.26 ). At the non-jury trial, the testimony, aside from that of the arresting officer regarding his arrival on the scene after the altercation had ended and his observation of the complainant's injuries, consisted of the victim's account of defendant's attack with his fists following a dispute over whether defendant was owed two hours' wages, and defendant's testimony that his attack was justified to defend himself against the victim's imminent assault (Penal Law § 35.15 ). The Criminal Court concluded that the People proved the elements of the offenses and disproved the justification defense (Penal Law § 35.00) beyond a reasonable doubt (see Penal Law § 25.00 ), and convicted defendant of both offenses.
On appeal, defendant argues that the People failed to disprove the justification defense beyond a reasonable doubt and that the convictions are against the weight of the evidence. Defendant further contends that by failing to sustain defendant's objection to a prosecutor's summation which vouched for the People's witnesses, the court necessarily relied on impermissible argument as a basis for its verdicts, which, accordingly, should be reversed.
Defendant made no objection at trial that the evidence was legally insufficient to disprove the justification defense beyond a reasonable doubt. Thus, the issue is not preserved for appellate review (see CPL 470.05 ; People v Gray, 86 NY2d 10, 19 ; People v Walker, 78 AD3d 1082 ; People v Battle, 73 AD3d 939, 940 ). In any event, viewed in the light most favorable to the prosecution (People v Contes, 60 NY2d 620, 621 ), the evidence was legally sufficient to disprove the defense. The victim's testimony established that defendant's attack was not preceded by any conduct by the victim that would support a reasonable belief that the use of physical force against defendant was imminent, much less that defendant actually believed such a threat existed (see People v Goetz, 68 NY2d 96, 114-115 ). Accordingly, there is no reasonable view of the evidence upon which a factfinder could properly conclude that defendant's conduct was justified (People v Petty, 7 NY3d 277, 284 ).
In performing our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we must "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" (People v Ya-Ko Chi, 72 AD3d 709, 710 ; see People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ), because "those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record" (People v Lane, 7 NY3d 888, 890 ). Upon our review of the record, we find that the verdict was not against the weight of the evidence.
As for the claims of error with respect to the prosecutor's summation, defendant objected to only one part of the summation, that the prosecutor was vouching for the People's witnesses, which objection the Criminal Court overruled. Aside from that objection, no other claim of prosecutorial misconduct on summation is preserved for appellate review (see CPL 470.05 ; People v Romero, 7 NY3d 911, 912 ; People v Williams, 38 AD3d 925, 926 ). On summation, defense counsel argued that the court should not credit the victim's testimony and that defendant's narrative was worthy of belief. The obvious goal of counsel was to persuade the court this defendant should be believed and the victim's testimony discredited as to the disputed facts. Courts have long recognized "the broad bounds of rhetorical comment permissible in closing argument" (People v Galloway, 54 NY2d 396, 399 ) and that a summation attack by the defense on the prosecution witnesses' credibility may justify a People's response in kind (People v Halm, 81 NY2d 819, 821 ). This is so where, as here, the trial "turns . . . on issues of credibility" and the outcome "depends for the testing of truth and, ultimately, for a just determination on the clash of competing contentions advanced under well-established rules by zealous and independent opposing counsel" (Galloway, 54 NY2d at 398). Thus, given that "the defense . . . attacked the credibility of the prosecution witnesses in summation, a responsive argument by [the prosecutor] that his witnesses have testified truthfully is not vouching for their credibility" (People v Barber, 13 AD3d 898, 900  [internal quotation marks and citation omitted]; e.g. People v Whitehurst, 70 AD3d 1057, 1058 ). In any event, "[a] court is presumed, in a non-jury trial . . . to have considered only competent evidence in reaching its verdict" because "[a] Judge is deemed uniquely capable of distinguishing those issues properly presented to him [or her] from those not . . . so as to ...