| People v Acevedo |
| 2016 NY Slip Op 01058 [136 AD3d 1357] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRaul O. Acevedo, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Mark C. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered July 10, 2013. The judgment convicted defendant, upon a jury verdict, ofattempted assault in the second degree and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofattempted assault in the second degree (Penal Law §§ 110.00, 120.05[2]) and criminal possession of a weapon in the third degree (§ 265.02 [1]),defendant contends that the verdict is against the weight of the evidence. We reject thatcontention. There is no dispute that defendant struck the 60-year-old victim four timeswith a pool cue in a bar. The only disputed issue at trial was whether defendant acted inself-defense. Defendant's actions were captured on a surveillance video that was admittedin evidence at trial. The video establishes that the victim did not make physical contactwith defendant, who was much younger and larger than the victim, and did not display aweapon. Although defendant testified that the victim threatened him with a knife earlierthat evening outside the bar, the victim denied that he had done so, and the jury was freeto discredit defendant's testimony in that regard inasmuch as it was "in the best positionto assess the credibility of the witnesses" (People v Orta, 12 AD3d 1147, 1147 [2004], lv denied4 NY3d 801 [2005]). Even assuming, arguendo, that a different verdict would nothave been unreasonable, we conclude that, viewing the evidence in light of the elementsof the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), itcannot be said that the jury failed to give the evidence the weight it should be accorded(see People v Ohse, 114AD3d 1285, 1286-1287 [2014], lv denied 23 NY3d 1041 [2014]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that County Court should have instructed the jury thatjustification is a defense to the charge of criminal possession of a weapon in the thirddegree. During the charge conference, however, defense counsel requested thatinstruction only with respect to attempted assault in the second degree, and he thus failedto preserve his present contention for our review (see CPL 470.05 [2]). We notethat, in any event, defendant correctly conceded at the time of the charge conference thatjustification was not a defense to the weapons offense (see People v Pons, 68NY2d 264, 267 [1986]; Peoplev Hawkins, 113 AD3d 1123, 1124 [2014], lv denied 22 NY3d 1156[2014]; People v Cohens,81 AD3d 1442, 1444 [2011], lv denied 16 NY3d 894 [2011]).
Finally, based on our review of the record, and considering that defendant has beenreleased to parole supervision, we perceive no basis upon which to modify the sentenceas a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]).Present—Smith, J.P., Peradotto, Lindley, DeJoseph and Scudder, JJ.