| People v Dilly |
| 2011 NY Slip Op 04266 [84 AD3d 1110] |
| May 17, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gabriel Dilly, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser,J.), rendered June 24, 2009, convicting him of assault in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of assault in the second degree pursuant to Penal Law §120.05 (2) in connection with an incident that occurred inside a Brooklyn night club. The juryfound that the defendant caused physical injury to the complainant by means of a dangerousinstrument. On appeal, the defendant contends that the evidence was legally insufficient and theverdict of guilt was against the weight of the evidence inasmuch as the People failed to provebeyond a reasonable doubt that he used a dangerous instrument rather than simply punching thecomplainant during the altercation.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish that thedefendant used a dangerous instrument. Moreover, upon reviewing the record here, we aresatisfied that the verdict of guilt as to assault in the second degree was not against the weight ofthe evidence (see People v Romero,7 NY3d 633 [2006]). The People presented uncontroverted expert medical testimony fromthe physician who supervised a surgery to repair the complainant's tear duct days after theincident. This medical expert testified that the injury to the complainant's lower eyelid, which hecalled a laceration, could only have been caused by "an object with an edge" and could not havebeen caused by a fist (see People v Wade, 274 AD2d 438 [2000]; People vVincent, 231 AD2d 444 [1996]).
The defendant's contentions that he was deprived of a fair trial by prosecutorial misconductduring summation are unpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]; People v Carrieri, 49AD3d 660, 662 [2008]), are without merit, or constitute harmless error in light of theoverwhelming evidence of his guilt (see People v Crimmins, 36 NY2d 230, 242 [1975];People v Brody, 82 AD3d 784[2011]; People v Porco, 71 AD3d791, 794 [2010], lv granted 15 NY3d 854 [2010]).[*2]
The defendant received the effective assistance of counsel(see People v Benevento, 91 NY2d 708, 712 [1998]). The sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Dickerson, Hall andCohen, JJ., concur.