SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
December 27, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
ANDREW T. MCDONALD,
Appeal from judgments of the District Court of Suffolk County, First District (Richard I. Horowitz, J.), rendered March 16, 2010.
People v McDonald (Andrew)
Decided on December 27, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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: TANENBAUM, J.P., NICOLAI and MOLIA, JJ
The judgments, respectively, convicted defendant, after a non-jury trial, of assault in the third degree.
ORDERED that the judgments of conviction are affirmed.
Defendant was found guilty, after a non-jury trial, of two charges of assault in the third degree (Penal Law § 120.00 ).
Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 ), we find the evidence was legally sufficient to establish defendant's guilt of assault in the third degree with respect to each of the complainants. While there were inconsistent details in the testimony of the People's witnesses, these details did not relate to the identification of defendant as one of the assailants. The complainants and the People's other witness provided substantially similar recollections of the altercation, which consistently described the extent of defendant's involvement. Contrary to defendant's contentions, minor inconsistencies in the testimony of the People's witnesses do not render their accounts incredible or unreliable (see People v Scipio, 61 AD3d 899 ). We further find that the People have met their burden on each and every element of the charges (People v Acosta, 80 NY2d 665 ).
In conducting our independent weight of the evidence review (see CPL 470.15 ; People v Danielson, 9 NY3d 342, 348-349 ), we view the evidence in light of the elements of the crimes in this non-jury trial and accord great deference to the District Court's opportunity to view the witnesses, hear their testimony, and observe their demeanor (People v Romero, 7 NY3d 633, 644-645 ; People v Bleakley, 69 NY2d 490, 495 ). Defendant's argument that the District Court erroneously gave more probative weight to the testimony of the complainants and the People's other witness than to the testimony of defendant's witnesses is without merit. The District Court found the People's witnesses to be credible, and we find no basis to disturb that finding. The testimony of the complainants and the People's other witness definitively described defendant's role in the altercation. Even accepting defendant's argument that his witnesses were the least biased, their accounts of the incident were factually deficient. The manager of the bowling alley, admittedly, did not witness the attack, arriving on the scene after the altercation was underway. Defendant's medical expert had no direct knowledge of defendant's post-surgery recovery and testified only to defendant's hypothetical physical capabilities. Upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see People v Lane, 7 NY3d 888, 890 ; Romero, 7 NY3d at 644-645; Bleakley, 69 NY2d at 495).
Tanenbaum, J.P., Nicolai and Molia, JJ., concur.
Decision Date: December 27, 2011
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