June 12, 2013
The People of the State of New York, respondent,
Shawn Cephas, also known as Sean Cephas, appellant. Ind. No. 07-01764
Mark Diamond, New York, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered October 1, 2008, convicting him of assault in the second degree and menacing in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
At trial, the People presented evidence that the defendant physically attacked the complainant by punching her, kicking her, choking her, dragging her, and slamming her head and face against a parked vehicle. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633). Contrary to the defendant's contention, the evidence was sufficient to establish that the defendant caused injury to the complainant by means of a dangerous instrument, namely, the vehicle (see Penal Law §§ 10.00; 120.05; People v Galvin, 65 N.Y.2d 761, 762-763; People v Carter, 53 N.Y.2d 113, 116; People v Warren, 98 A.D.3d 634, 636).
The trial court did not err in refusing to give a missing witness charge with respect to a witness whose testimony would have constituted hearsay (see People v Keen, 94 N.Y.2d 533, 539; People v Watson, 220 A.D.2d 333; People v Small, 201 A.D.2d 315, 316).
The defendant's remaining contentions are without merit.
BALKIN, J.P., LEVENTHAL, LOTT and SGROI, JJ., concur.