| People v Marsh |
| 2012 NY Slip Op 08155 [100 AD3d 1020] |
| November 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Arlene K. Marsh, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.),rendered January 19, 2010, convicting her of reckless assault of a child and endangering thewelfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was tried on charges of reckless assault of a child (see Penal Law§ 120.02) and endangering the welfare of a child (see Penal Law § 260.10).The defendant testified on her own behalf and admitted that, while babysitting for thethen-15-month-old child of a friend, she picked the child up by the lower arms, below theelbows, and threw him into a crib, causing him to strike his head. The child sustained severeinjuries, including traumatic injury to his brain resulting in brain damage. The jury found thedefendant guilty of reckless assault of a child and endangering the welfare of a child.
The defendant's contention that the evidence was legally insufficient to support herconviction of reckless assault of a child is unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]), and, in any event, is without merit. Viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]),we find that it was legally sufficient to establish the defendant's guilt of reckless assault of a childbeyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,349 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that she was deprived of a fair trial by the County Court'serroneous instruction with respect to the count of reckless assault of a child in response to a jurynote is unpreserved for appellate review (see CPL 470.05 [2]; People v Clark,298 AD2d 461 [2002]), and we decline to reach it in the exercise of our interest of justicejurisdiction (see CPL 470.15 [16]).[*2]
The sentence imposed was not excessive (see Peoplev Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.