People v DeSantis
2013 NY Slip Op 03848 [106 AD3d 1100]
May 29, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 26, 2013


The People of the State of New York, Respondent,
v
Lawrence DeSantis, Appellant.

[*1] Lynn W. L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Deborah Wassel of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered February 14, 2011, convicting him of assault in the second degree and criminal mischief in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that his conviction of assault in the second degree should be reversed since the evidence of "[p]hysical injury" (Penal Law § 10.00 [9]) was legally insufficient. That contention is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish that the complainant sustained a physical injury (see Penal Law § 10.00 [9]; People v Chiddick, 8 NY3d 445, 447-448 [2007]; People v Boucher, 97 AD3d 597 [2012]; People v Dorce, 92 AD3d 692 [2012]; People v Robinson, 75 AD3d 567 [2010]; People v Williams, 69 AD3d 662, 662-663 [2010]; People v Sheppard, 202 AD2d 701, 702 [1994]; People v Daniels, 199 AD2d 332 [1993]; People v Maturevitz, 149 AD2d 908, 909 [1989]; People v Williams, 112 AD2d 176, 176-177 [1985]).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt as to assault in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People v Boucher, 97 AD3d at 597; People v Daniels, 199 AD2d 332 [1993]; People v Dorce, 92 AD3d 692 [2012]; People v Robinson, 75 AD3d 567 [2010]). Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.