The defendant was found guilty, after a bench trial, of attempt assault in the third degree (PL § 110/120.00[1]) and harassment in the second degree (PL § 240.26[1]). The defendant has brought a post-trial motion to set aside the verdict. Whether this motion is considered under CPL § 330.30 or CPL § 440.10, it is, in either case, denied.

A trial judge is statutorily authorized to set aside a verdict pursuant to CPL § 330.30 (1) only where a reversal or modification would be required as a matter of law by an appellate court. A trial judge does not have the power to change a guilty verdict to a not guilty verdict based on a reassessment of the facts. Whether the verdict has been rendered by a jury or by the court, the trial judge may not engage in a post-verdict weight of the evidence analysis. People v Carter, 63 NY2d 530 [1984]).

The defendant essentially argues that the People have failed to prove that the defendant intended to cause physical injury to the complainant. The issue of the legal sufficiency of the evidence concerning intent was considered by the court when it denied the defendant's motion for a trial order of dismissal and the court adheres to that decision. Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense and the defendant's commission of that offense. (CPL § 70.10[1]). Legally sufficient evidence means a prima facie case, not proof beyond a reasonable doubt. (People v Swamp, 84 NY2d 725 [1995])

The defendant's intent to cause physical injury can be inferred not only from his conduct in striking the complainant but also from the surrounding circumstances. Contrary to the assertions in the defendant's papers, the defendant's striking of the complainant was not an "isolated contact". Rather, it was the culmination of a continuing argument between the parties and occurred after the defendant had been separated from the complainant by a police officer. [*2]Despite the officer's admonition, the defendant thereafter pursued the complainant and struck her in the head. This evidence established a prima facie case of attempt assault in the third degree and harassment in the second degree.

Additionally, the trial evidence was adequate as a matter of law to prove guilt beyond a reasonable doubt. This legal standard requires the court to determine "whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime have been proven beyond a reasonable doubt". (People v Cabey, 85 NY2d 417 [1995]; People v Wong, 81 NY2d 600 [1993]). In this regard, the Court of Appeals has noted that "the scope of a reasonable mind is broad. It's conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond a reasonable doubt may fairly lie within the limits of reasonable conclusion from given facts." (People v Jackson, 65 NY2d 265, 271 [1985]). Because the trial evidence does "permit the conclusion of guilt beyond a reasonable doubt within the fair operation of a reasonable mind" (Jackson, supra), the trial evidence is not inadequate as a matter of law.

Since the evidence in this case is legally sufficient and is legally adequate to establish the guilt of the defendant, there is no error of law which would require a reversal upon appeal under CPL § 330.30. Likewise, there is no basis to vacate judgment pursuant to CPL § 440.10. The weight of the evidence arguments raised by the defendant are, as noted above, beyond the authority of the trial court to consider.

The defendant's motion to dismiss is hereby denied in all respects. This constitutes the decision and order of the court.

Dated: ___________________________

New York, New York Richard M. Weinberg

Judge of the Criminal Court