| People v King |
| 2011 NY Slip Op 05097 [85 AD3d 820] |
| June 7, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Unique King, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Danielle Hartman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered April 22, 2009, adjudicating her a youthful offender, after a nonjurytrial, finding her guilty of assault in the second degree and criminal possession of a weapon in thefourth degree, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review her contention that the evidence insupport of the fourth count of the indictment was legally insufficient to prove that she acted withintent to cause physical injury since she, at most, acted recklessly. The defendant's motion todismiss this count of the indictment failed to assert this argument as a ground for dismissal(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]; People v Finger, 95 NY2d 894, 895[2000]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, this contention is withoutmerit. The defendant's intent to cause physical injury (see Penal Law § 10.00 [9])may be inferred from her conduct and the surrounding circumstances (see People vBracey, 41 NY2d 296, 301 [1977]; People v Barresi, 80 AD3d 709, 710 [2011], lv denied 16NY3d 856 [2011]; People vSpurgeon, 63 AD3d 863, 863-864 [2009]; People v Gumbs, 58 AD3d 641 [2009]). Furthermore, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to disprove the defendant's justificationdefense and to establish the defendant's guilt of the fourth count of the indictment, which chargedassault in the second degree (see Penal Law § 120.05 [2]), and the fifth count ofthe indictment, which charged criminal possession of a weapon in the fourth degree (seePenal Law § 265.01 [2]), beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). "[T]he appropriatestandard for evaluating [a] weight of the evidence argument is the same, regardless of whetherthe factfinder was a judge or jury" (People v Rojas, 80 AD3d 782, 782 [2011] [internal quotationmarks omitted]; see People vZephyrin, 52 AD3d 543, 543 [2008]). Upon reviewing the record here, [*2]we are satisfied that the verdict of guilt was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's argument that the fifth count of the indictment was rendered duplicitous bythe trial testimony is unpreserved for appellate review, as no objection was made by thedefendant's counsel on this issue (see CPL 470.05 [2]). In any event, this contention iswithout merit (see People v Wells, 7NY3d 51, 57 [2006]; People v Davis, 72 NY2d 32, 39 [1988]; People vJiminez, 239 AD2d 360 [1997]). Dillon, J.P., Balkin, Belen and Sgroi, JJ., concur.