| People v Raad |
| 2018 NY Slip Op 08037 [166 AD3d 907] |
| November 21, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Leon Raad, Appellant. |
Salvatore C. Adamo, New York, NY, for appellant.
Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger, Patrick J.Fischer, and Carrie A. Ciganek of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(David S. Zuckerman, J.), rendered May 10, 2016, as amended May 31, 2016, convictinghim of assault in the second degree and resisting arrest, upon a jury verdict, and imposingsentence.
Ordered that the judgment, as amended, is affirmed.
The defendant was indicted for assault in the second degree pursuant to Penal Law§ 120.05 (3) and resisting arrest pursuant to Penal Law§ 205.30. The charges arose from an incident that occurred on June 6, 2015,as three police officers responded to a report of a violent domestic dispute. After trial, thejury convicted the defendant on both counts. The County Court later sentenced him tothe minimum term of imprisonment of two years for assault in the second degree(see Penal Law § 70.02), to run concurrently with a term ofimprisonment of one year for resisting arrest. The defendant appeals.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishbeyond a reasonable doubt the defendant's guilt of assault in the second degree (PenalLaw § 120.05 [3]) and resisting arrest (Penal Law § 205.30).Moreover, in fulfilling our responsibility to conduct an independent review of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view witnesses, hear the testimony,and observe demeanor (see People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence.
The defendant's contention that count one of the indictment, which charged him withassault in the second degree, was defective due to insufficiency of the factual allegationsis unpreserved for appellate review (see CPL 470.05 [2]; People vIannone, 45 NY2d 589, 600 [1978]) and, in any event, without merit (seeCPL 200.50 [7] [a]; People vRodriguez, 62 AD3d 728 [2009]; People v Dudley, 289 AD2d 503[2001]).
The defendant's contention that the trial court did not adequately respond to a jurynote requesting clarification of the "definitions between assault & attempted assault"is unpreserved [*2]for appellate review (see CPL470.05 [2]; People v Morris,27 NY3d 1096 [2016]) and, in any event, without merit (see People vMalloy, 55 NY2d 296, 301-302 [1982]).
We agree with the County Court's denial, without a hearing, of that branch of thedefendant's motion which was to set aside the verdict pursuant to CPL 330.30 (2), basedupon alleged juror misconduct (see CPL 330.40 [2] [e]; People v Gerrara, 88 AD3d811, 813-814 [2011]; People v Bab Lin You, 264 AD2d 780, 780 [1999];People v Cervantes, 242 AD2d 730, 731 [1997]).
The defendant was not deprived of the effective assistance of counsel (see People v Caban, 5 NY3d143, 152 [2005]; People v Benevento, 91 NY2d 708, 712-713 [1998]).
Since the defendant has completed the sentence imposed, the issue of whether thesentence was excessive has been rendered academic (see People v Russillo, 27 AD3d 493, 494 [2006]).
The defendant's remaining contention is without merit. Dillon, J.P., Duffy, Connollyand Christopher, JJ., concur.