| People v DeFilippo |
| 2012 NY Slip Op 07685 [100 AD3d 767] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GaryDeFilippo, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney,J.), rendered March 5, 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, as defined by Penal Law§ 120.05 (2), in connection with an incident that occurred inside the South Shore CountryClub on Staten Island, during which one of the complainant's eyeballs was punctured and,consequently, had to be surgically removed.
The defendant's contention that the evidence was legally insufficient to disprove hisjustification defense beyond a reasonable doubt is unpreserved for appellate review (seeCPL 470.05 [2]; People v Hawkins,11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to disprove the defendant's justification defense beyond a reasonable doubt(see Penal Law § 35.15), and to establish that the defendant used a dangerousinstrument when he struck the complainant (see Penal Law §§ 10.00 [13];120.05 [2]). Additionally, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewingthe record here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) was not an improvident exercise of discretion(see People v Hayes, 97 NY2d 203, 208 [2002]; People v Walker, 83 NY2d 455,459 [1994]).
The Supreme Court did not improvidently exercise its discretion in denying the [*2]defendant's request to present an expert witness to testify as to thecomplainant's psychiatric condition following the subject incident, as such testimony was notrelevant to the justification defense (see People v Adams, 272 AD2d 953 [2000]; seegenerally People v Hill, 85 NY2d 256, 261 [1995]; People v Cronin, 60 NY2d 430,433 [1983]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Rivera, J.P., Angiolillo, Chambers and Roman, JJ., concur.