| People v Ghent |
| 2015 NY Slip Op 07107 [132 AD3d 1275] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJames A. Ghent, III, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Mark C. Davison of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered December 7, 2011. The judgment convicted defendant, upon a nonjury verdict,of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of assault in the second degree (Penal Law § 120.05 [2]). Viewingthe evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "In abench trial, no less than a jury trial, the resolution of credibility issues by the trier of factand its determination of the weight to be accorded the evidence presented are entitled togreat deference" (People v Van Akin, 197 AD2d 845, 845 [1993]). County Courtwas entitled to reject defendant's version of the events "and, upon our review of therecord, we cannot say that the court failed to give the evidence the weight that it shouldbe accorded" (People v Britt, 298 AD2d 984, 984 [2002], lv denied 99NY2d 556 [2002]). We reject defendant's further contention that he received ineffectiveassistance of counsel because counsel failed to request a charge on the defense ofintoxication. Defendant failed to "demonstrate the absence of strategic or other legitimateexplanations for counsel's failure to request" that charge (People v Rivera, 71NY2d 705, 709 [1988]; seePeople v Taylor, 1 NY3d 174, 177 [2003]). Indeed, "[a] defense of intoxicationwould have been inconsistent with . . . defendant's [testimony]. . . that he" drank three or four beers that evening, which affected hisjudgment to a certain extent, but that he was not intoxicated (People v Gary, 299AD2d 960, 961 [2002], lv denied 99 NY2d 582 [2003]). Finally, the sentence isnot unduly harsh or severe. Present—Centra, J.P., Peradotto, Lindley, Whalen andDeJoseph, JJ.