| People v Miller |
| 2012 NY Slip Op 02204 [93 AD3d 1305] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ethan Miller,Appellant. |
—[*1] John C. Tunney, District Attorney, Bath, for respondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), rendered April28, 2010. The judgment convicted defendant, upon a jury verdict, of assault in the second degree(two counts) and falsifying business records in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, two counts of assault in the second degree (Penal Law § 120.05 [2], [9]).Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), and affording the appropriate deference to the jury's credibilitydeterminations (see People v Hill,74 AD3d 1782, 1782-1783 [2010], lv denied 15 NY3d 805 [2010]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's contention, scaldinghot water constitutes a "dangerous instrument" (§ 120.05 [2]; see People v Mableton, 17 AD3d383, 383 [2005], lv denied 4 NY3d 888 [2005]; People v Cruz, 257 AD2d664 [1999]; People v Holden, 188 AD2d 757, 760 [1992], lv denied 81 NY2d887 [1993]), and the People were not required to establish the precise temperature of the water orthe length of exposure that caused second degree immersion burns to the feet and ankles of thechild victim.
Defendant further contends that County Court violated his constitutional right to present adefense when it precluded him from offering hearsay testimony regarding the fact that children ofthe victim's mother were previously removed from her custody and placed in foster care (seegenerally Chambers v Mississippi, 410 US 284, 302 [1973]). That contention is notpreserved for our review (see People v Gonzalez, 54 NY2d 729, 730 [1981]; People vSimmons, 283 AD2d 306, 306 [2001], lv denied 96 NY2d 924 [2001]) and, in anyevent, it is without merit inasmuch as defendant made no effort to establish such fact by a meansother than inadmissible hearsay. Present—Centra, J.P., Carni, Lindley, Sconiers andMartoche, JJ.