| People v Von Thaden |
| 2013 NY Slip Op 05474 [108 AD3d 733] |
| July 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Von Thaden, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Ames C.Grawert of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Donnino, J.), rendered July 22, 2005, convicting him of attempted assault in the seconddegree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of attempted assault in the second degree is unpreserved for appellate review(see CPL 470.05 [2]; People v Kolupa, 13 NY3d 786, 787 [2009]; People v Lane, 7 NY3d888, 889 [2006]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the fact-finder's opportunity to view the witnesses, hear thetestimony, 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 was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant contends that reversal is warranted because the prosecutor exceededthe scope of the Supreme Court's Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]). However, defense counsel did not seek furtherrelief or move for a mistrial after the Supreme Court sustained his objection and struckthe testimony from the record, so the error must be deemed to have been cured to thedefendant's satisfaction (seePeople v Gill, 54 AD3d 965, 665-966 [2008]). In any event, the defendant wasnot prejudiced by the prosecutor's questions, since the Supreme Court, in this nonjurytrial, is presumed to have disregarded the stricken testimony (see People v Owens, 45 AD3d1058, 1059 [2007]; Peoplev Kolon, 37 AD3d 340, 342 [2007]; see generally People v Moreno, 70NY2d 403, 405 [1987]).
The defendant also contends that the Supreme Court's denial of his request toproduce the complainant's mental health records deprived him of his constitutional rightto present a defense and confront witnesses against him. This contention is unpreservedfor appellate review (see Peoplev Valdez-Cruz, 99 AD3d 738, 739 [2012]; People v Forte, 70 AD3d 963, 964 [2010]) and, in anyevent, is without [*2]merit (see People vGissendanner, 48 NY2d 543, 547-551 [1979]; People v Brown, 24 AD3d 884, 887 [2005]; People vDavis, 203 AD2d 300 [1994]; cf. People v Baranek, 287 AD2d 74 [2001]).Skelos, J.P., Angiolillo, Leventhal and Chambers, JJ., concur.