Opinion
2012-11-14
The PEOPLE, etc., respondent, v. Gary DeFILIPPO, appellant.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel and Lisa Marlow Wolland of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered March 5, 2009, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of assault in the second degree, as defined by Penal Law § 120.05(2), in connection with an incident that occurred inside the South Shore Country Club on Staten Island, during which one of the complainant's eyeballs was punctured and, consequently, had to be surgically removed.
The defendant's contention that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt ( seePenal Law § 35.15), and to establish that the defendant used a dangerous instrument when he struck the complainant ( seePenal Law §§ 10.00[13], 120.05[2] ). Additionally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) was not an improvident exercise of discretion ( see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963;People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472).
The Supreme Court did not improvidently exercise its discretion in denying the defendant's request to present an expert witness to testify as to the complainant's psychiatric condition following the subject incident, as such testimony was not relevant to the justification defense ( see People v. Adams, 272 A.D.2d 953, 708 N.Y.S.2d 766;see generally People v. Hill, 85 N.Y.2d 256, 261, 624 N.Y.S.2d 79, 648 N.E.2d 455;People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.