Appeal from a judgment of the District Court of Suffolk County, First District (Gigi A. Spelman, J.), rendered May 14, 2010.
People v Maffeo (Stephen)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2012
PRESENT: MOLIA, J.P., IANNACCI and LaSALLE, JJ
The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a prosecutor's information with assault in the third degree (Penal Law § 120.00 ). At a non-jury trial, Police Officers Yasso and Kopke testified that, upon arriving at the scene of the incident in response to a radio dispatch, they had observed defendant on top of the complainant striking her about the face and pushing her head into the ground. Another witness testified that he had seen a physical scuffle and heard a woman calling for help.
The complainant recanted the allegations contained in her supporting deposition to the effect that defendant had thrown her to the ground and hit her head into the ground. Rather, she maintained that she and defendant, who had been in a relationship at the time of the incident, had been leaving a wedding reception when she had begun acting irrationally and emotionally, and that she had jumped out of the car and had run towards the highway. She further testified that she had become hysterical and had been yelling and that defendant had been trying to help her up after she had fallen. Defendant testified to the same effect as had the complainant.
At the close of arguments and summations, the court, sua sponte, considered the lesser included offense of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ) and found defendant guilty of this charge.
To the extent that defendant now contends that the evidence of guilt was legally insufficient, his claim is not preserved (see People v Rivera, 74 AD3d 993 ). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 ), we find that it was legally sufficient to sustain defendant's conviction.
In the exercise of our factual review power (see CPL 470.15 ; People v Danielson, 9 NY3d 342, 349 ; People v Romero, 7 NY3d 633, 644 ; People v Bleakley, 69 NY2d 490, 495 ), we are of the opinion that defendant's conviction of attempted assault in the third degree was not against the weight of the evidence. The evidence included the testimony of two police officers who had observed defendant striking the complainant and pushing her face into the pavement. Although the complainant testified at trial that defendant had not struck her and that defendant had been trying to help her after she had fallen down, thereby recanting her prior sworn allegations of the account of the incident contained in her supporting deposition (CPL 100.20), her claim at trial that defendant's physical contact with her was innocent was properly rejected. The trier of fact was entitled to credit the proof adduced by the People, particularly on the issue of whether defendant had the requisite intent to inflict a "physical injury," i.e., an impairment of a physical condition or substantial pain (Penal Law § 10.00 ), for a conviction of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ). The resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, is primarily for the trier of fact, which has the opportunity to "view the witnesses, hear the testimony and observe demeanor" (Romero, 7 NY3d at 644). The determination of the trier of fact will be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Lane, 7 NY3d 888 ). The record before us amply supports the District Court's determination.
Finally, defendant was properly convicted of attempted assault in the third degree as a lesser included crime of assault in the third degree since a reasonable view of the evidence supports a finding that defendant committed such lesser offense, but did not ...