| People v Watkins |
| 2009 NY Slip Op 04635 [63 AD3d 1656] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gregory AllanWatkins, Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (David V. Shaw of counsel), forrespondent.
Appeal from a judgment of the Wayne County Court (Stephen R. Sirkin, J.), renderedOctober 19, 2007. The judgment convicted defendant, after a nonjury trial, of assault in the thirddegree (two counts), assault in the second degree, and criminal possession of a weapon in thefourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing those parts convicting defendant of assault in the third degree under counts one andtwo of the indictment and dismissing those counts of the indictment and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof two counts of assault in the third degree (Penal Law § 120.00 [1]) and one count each ofassault in the second degree (§ 120.05 [2]) and criminal possession of a weapon in thefourth degree (§ 265.01 [2]). Viewing the evidence in light of the elements of the crimes inthis nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The testimony of the People's witnesses was not incredible as a matter of law (see People v Ptak, 37 AD3d 1081[2007], lv denied 8 NY3d 949 [2007]), and we see no reason to disturb County Court'sresolution of credibility issues (seePeople v Burroughs, 57 AD3d 1459 [2008], lv denied 12 NY3d 756 [2009]; People v Reddick, 43 AD3d 1334,1335-1336 [2007], lv denied 10 NY3d 815 [2008]). Although we agree with defendantthat the court erred in precluding a defense witness from testifying that he heard the victimthreaten defendant (see People v Dixon, 138 AD2d 929 [1988]; see generally People v Petty, 7 NY3d277, 285 [2006]; People v Miller, 39 NY2d 543, 549 [1976]), we neverthelessconclude that the error is harmless (see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). The proof of defendant's guilt is overwhelming, and there is no significantprobability that defendant would have been acquitted but for the error (see People vBruner, 222 AD2d 738, 739 [1995], lv denied 88 NY2d 981 [1996]; seegenerally Crimmins, 36 NY2d at 241-242). We note in particular that defendant presentedextensive testimony in support of his justification defense and thus that he was afforded "ameaningful opportunity to present a complete defense" (People v Ramsey, 59 AD3d 1046, 1048 [2009] [internal quotationmarks omitted]; see People v Starostin, 265 AD2d 267 [1999], lv denied 94NY2d 885 [2000]; cf. People v Loria, 190 AD2d 1006 [1993]).
As the People correctly concede, those parts of the judgment convicting defendant of [*2]assault in the third degree under counts one and two of theindictment must be reversed, and those counts dismissed, because assault in the third degree is alesser included offense of assault in the second degree (see People v Romain, 5 AD3d 611 [2004], lv denied 2NY3d 805 [2004]; People v Jones, 277 AD2d 329 [2000], lv denied 96 NY2d784 [2001]; see generally CPL 300.40 [3] [b]). We therefore modify the judgmentaccordingly. Present—Martoche, J.P., Smith, Fahey, Carni and Green, JJ.