| People v McDaniel |
| 2011 NY Slip Op 04707 [84 AD3d 1410] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Barcel McDaniel, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz, Ilisa T. Fleischer,and Richard R. Martell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Jaeger, J.),rendered January 13, 2010, convicting him of assault in the second degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the People failed to disprove the defense of justification andfailed to establish his guilt of assault in the second degree by legally sufficient evidence isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]; People v Walker,78 AD3d 1082, 1083 [2010]; People v Battle, 73 AD3d 939, 940 [2010]; People vHolmes, 37 AD3d 1042 [2007]). In any event, the evidence, when viewed in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), waslegally sufficient to disprove the justification defense and to establish the defendant's guilt ofassault in the second degree. Moreover, upon our independent review of the evidence pursuant toCPL 470.15 (5), we are satisfied that the jury's rejection of the justification defense and theverdict of guilt on the count of assault in the second degree was not against the weight of theevidence (see People v Romero, 7 NY3d 633 [2006]).
The trial court providently exercised its discretion in permitting an in-court demonstrationduring the People's case for the limited purpose of illustrating the positions of the participants inthe subject altercation (see People v Barnes, 80 NY2d 867, 868 [1992]), and by denyingthe defendant's request for an in-court demonstration "to show exactly where the hands" of theparticipants were during the altercation (see People v Acevedo, 40 NY2d 701, 704[1976]; People v Caballero, 34 AD3d 690, 691 [2006]).
The defendant's remaining contentions are unpreserved for appellate review (see CPL470.05 [2]; People v Alfaro, 66 NY2d 985, 987 [1985]; People v Ariza, 77 AD3d844, 845 [2010]; People v Battle, 73 AD2d at 940; People v Floyd, 34 AD3d 494,494-495 [2006]; People v Cruz, 175 AD2d 212 [1991]; People v Ramos, 168AD2d 518 [1990]) and, in any event, are without merit. Covello, J.P., Chambers, Lott and Miller,JJ., concur.