| People v Cruz |
| 2017 NY Slip Op 06451 [153 AD3d 1271] |
| September 13, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alex Humberto Cruz, Appellant. |
Gerald Zuckerman, Croton-on-Hudson, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary,J.), rendered December 23, 2015, convicting him of assault in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the verdict was repugnant because the jury found him guiltyof assault in the second degree but acquitted him of criminal possession of a weapon in thirddegree is unpreserved for appellate review, as he failed to raise the issue before discharge of thejury (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Ariza, 77 AD3d 844, 845 [2010]; People v Moses, 36 AD3d 720[2007]), and we decline to reach it in the exercise of our interest of justice jurisdiction(cf. CPL 470.15 [6] [a]; People v Rayam, 94 NY2d 557, 562-563 [2000]).
The defendant contends that the conviction was against the weight of the evidence. Infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633, 643-644 [2006]).
Contrary to the defendant's contention, the Supreme Court properly denied his request tocharge assault in the third degree under the reckless and criminally negligent mens rea (seePenal Law § 120.00 [2], [3]) as lesser-included offenses of assault in the firstdegree. "A party who seeks to have a lesser included crime charged to the jury must satisfy atwo-pronged inquiry" (People vRivera, 23 NY3d 112, 120 [2014]; see People v Glover, 57 NY2d 61, 63[1982]). "First, the crime must be a lesser included offense" (People v Rivera, 23 NY3dat 120), meaning that "it is impossible to commit the greater crime without concomitantlycommitting the lesser offense by the same conduct" (People v Van Norstrand, 85 NY2d131, 135 [1995]). "Second, the party making the request for a charge-down 'must [*2]then show that there is a reasonable view of the evidence in theparticular case that would support a finding that [the defendant] committed the lesser includedoffense but not the greater' " (People v Rivera, 23 NY3d at 120, quotingPeople v Glover, 57 NY2d at 63; see CPL 300.50 [1]). Here, the first prong issatisfied because assault in the third degree is a lesser-included offense of assault in the firstdegree (see People v Green, 56 NY2d 427, 433 [1982]). The second prong, however, isnot satisfied. Viewing the evidence in the light most favorable to the defendant, there is noreasonable view of the evidence which would support a finding that the defendant's conduct wasmerely reckless or criminally negligent, or that he intended anything other than to cause seriousphysical injury to the victim (see Peoplev Stanford, 87 AD3d 1367, 1368 [2011]; People v Cesario, 71 AD3d 587 [2010]; see also People vRivera, 23 NY3d at 124; People v Butler, 84 NY2d 627, 632 [1994]; People v Alvaradoajcuc, 142 AD3d1094, 1094-1095 [2016]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 86[1982]). Balkin, J.P., Chambers, Barros and Brathwaite Nelson, JJ., concur.