Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered December 8, 2009.
Decided on April 29, 2011
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.
The judgment convicted defendant, after a non-jury trial, of assault in the second degree (two counts) and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her following a non-jury trial of two counts of assault in the second degree (Penal Law § 120.05 , ) and one count of endangering the welfare of a child (§ 260.10 ). Defendant failed to preserve for our review her contention that the conviction is not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19). Furthermore, viewing the evidence in light of the elements of the crimes in this non-jury trial (see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Defendant correctly concedes that she failed to preserve for our review her contention that the conviction of endangering the welfare of a child is barred by the merger doctrine (see CPL 470.05 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15  [a]; People v Smith, 262 AD2d 1063, lv denied 93 NY2d 1027).
Patricia L. Morgan Clerk of the Court
© 1992-2011 VersusLaw ...