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The People of the State of New York v. Luciano Ortiz

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 10, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
LUCIANO ORTIZ,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered November 28, 2007.

People v Ortiz

Decided on November 10, 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: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

The judgment convicted defendant, upon a non-jury verdict, of assault in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a non-jury verdict of assault in the second degree (Penal Law § 120.05 [former (3)]). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he made only a general motion for a trial order of dismissal (see People v Gray, 86 NY2d 10, 19). In addition, viewing the evidence in light of the elements of the crime 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). We also conclude that the sentence is not unduly harsh or severe.

Entered: November 10, 2011

Patricia L. Morgan Clerk of the Court

20111110

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