| People v Thomas |
| 2009 NY Slip Op 06044 [64 AD3d 798] |
| July 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shawn Thomas, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered September 15, 2003, convicting him of assault in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
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 the defendant'sguilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]).
The defendant's contention that the County Court erred in permitting the People to impeachtheir own witness with the minutes of his sworn plea allocution is without merit. The defendantwas charged with assault in the second degree (Penal Law § 120.05 [3]), which requiredthe People to prove that he caused physical injury to a peace officer with the intent to keep theofficer from performing a lawful duty. Here, inasmuch as the witness's trial testimony tended toaffirmatively disprove that the peace officer was performing a lawful duty, and thus that thedefendant's conduct was performed with the requisite intent, the court properly permitted the useof the plea allocution to impeach the witness on this point (see CPL 60.35 [1]; Peoplev Jones, 25 AD3d 724, 725 [2006]; People v Murray, 17 AD3d 1042, 1043 [2005];cf. People v Lawrence, 227 AD2d 893, 894 [1996]). Any error with respect to thePeople's impeachment of that witness other than with the witness's sworn plea allocution washarmless in light of the overwhelming evidence of the defendant's guilt and the absence of anysignificant probability that the verdict would have been different absent the error (see Peoplev Crimmins, 36 NY2d 230, 242 [1975]; People v Shuler, 238 AD2d 528, 529[1997]).
The defendant's contention that the court erred in its instructions to the jury is unpreserved[*2]for appellate review and, in any event, is without merit(see CPL 470.05 [2]; People v Rivera, 84 NY2d 766, 769 [1995]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Fisher, J.P., Florio, Covello and Dickerson, JJ., concur.