The opinion of the court was delivered by: Weston, J.
People v McDuffie (Edward)
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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2011
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (William M. Harrington, J.), rendered November 9, 2007. The judgment, after a non-jury trial, convicted defendant of attempted endangering the welfare of a child.
ORDERED that the judgment of conviction is affirmed.
Following a non-jury trial, defendant was convicted of attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10 ). 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, beyond a reasonable doubt, of attempted endangering the welfare of a child.
The transcript of the 911 tape which was placed into evidence at trial showed that a Good Samaritan made the 911 call in question. He told the 911 operator that he had observed "someone taking a baby away from its mother and that the mother was trying to get the baby back." This Good Samaritan also stated that the police needed to respond quickly "because the situation was getting worse and the baby was crying." He remained at the scene and subsequently flagged down a police car with two police officers in it. He then spoke to Police Officer Giachetti, one of the two police officers.
While this Good Samaritan told Police Officer Giachetti that a man and a woman were having a loud argument, it does not negate the fact that he had personally observed the infant being taken away from its mother without the mother's consent, and the mother trying to retrieve her baby without success. Nor does it negate the fact that he called 911 with this information and waited at the scene until he saw to it that a police officer became involved. This is not just a situation of two people being engaged in a heated argument.
Further, the uncontradicted testimony of Police Officer Giachetti was that he and his partner had been flagged down by this concerned person, who had directed them to defendant and to the woman in question. He had personally witnessed the woman asking defendant for her infant back and had seen defendant pushing her away and saying "no." He and his partner attempted to calm them down. He observed defendant holding the infant with the infant's head in defendant's forearm, and it appeared that defendant was choking the infant with his forearm. He also observed defendant flailing the infant about in a violent manner while pushing the mother away.
Police Officer Giachetti further testified that both he and his partner had attempted to take the infant away from defendant several times, but every time they had tried to do so, defendant had become more violent and had begun flailing the infant about even harder. After approximately five minutes, Police Officer Giachetti was able to convince defendant to give the infant back to its mother. Defendant was thereupon placed under arrest.
We find, based upon the foregoing, that the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt.
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 a review of the record, we are satisfied that the verdict of guilt was not against ...