Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph Zayas, J.), rendered April 6, 2009.
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This opinion is uncorrected and will not be published in the printed Official Reports.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: 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.
After a non-jury trial, defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ) and harassment in the second degree (Penal Law § 240.26 ). Defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 ; People v Hawkins, 11 NY3d 484, 491-492 ; People v Williams, 38 AD3d 925 ). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to establish defendant's guilt of both offenses beyond a reasonable doubt, and to disprove defendant's defense of justification (Penal Law § 35.00) beyond a reasonable doubt (Penal Law § 25.00 ). Moreover, 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 Lane, 7 NY3d 888, 890 ; People v Bleakley, 69 NY2d 490, 495 ). Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (People v Romero, 7 NY3d 633 ).
Pesce, P.J., and Steinhardt, J., concur.
Golia, J., dissents in a separate memorandum. Golia, J., dissents and votes to reverse the judgment of conviction and dismiss the information in the following memorandum:
In conducting an independent review of the weight of the evidence in accordance with People v Danielson (9 NY3d 342 ), I initially find that an acquittal of all charges "would not have been unreasonable." Further, I find insufficient evidence to establish that defendant was guilty beyond a reasonable doubt of each element of the crime and violation of which he was found guilty.
Most specifically, the clearly reflexive action of defendant in hitting the complainant with a single punch immediately after being struck by the complainant does not support a conviction for either the intentional attempted assault in the third degree charge or the harassment in the second degree charge.
The evidence adduced at the non-jury trial clearly established that it was the complainant who initially became verbally confrontational with defendant, without any physical retribution or threats from defendant. The uncontroverted evidence further showed that the complainant and defendant were at an after-work card party, where they and other co-workers were drinking alcoholic beverages. The complainant, who was somewhat older than defendant and was defendant's supervisor, had fallen asleep on the couch. When he awoke, he heard defendant speaking loudly and using foul language. Despite the fact that there is no evidence that the foul language was directed at him, the complainant nevertheless took offense and directed defendant to lower his voice and not to use such language in the presence of older ...