Opinion
2006-1439 N CR.
Decided May 29, 2008.
Appeals from judgments of the District Court of Nassau County, First District (Norman St. George, J.), rendered September 8, 2006. The judgments convicted defendant, upon jury verdicts, of attempted assault in the third degree and driving while intoxicated.
Judgments of conviction affirmed.
PRESENT: RUDOLPH, P.J., TANENBAUM and MOLIA, JJ.
At the conclusion of the jury trial, defendant was found guilty of attempted assault in the third degree (Penal Law §§ 110.00, 120.00) and driving while intoxicated (Vehicle and Traffic Law § 1192).
With respect to his conviction of attempted assault in the third degree, defendant contends that the evidence was legally insufficient to establish the element of intent to cause physical injury and that the verdict was against the weight of the evidence. As to his conviction of driving while intoxicated, defendant contends that absent any proof that he failed field sobriety tests, the evidence adduced at trial was legally insufficient to establish his guilt, and, in any event, the verdict as to this charge was against the weight of the evidence.
Defendant did not preserve for appellate review his contention that the evidence was legally insufficient to establish his guilt of attempted assault in the third degree (CPL 470.05; People v Hines, 97 NY2d 56, 61). In any event, a person is guilty of attempted assault in the third degree (Penal Law §§ 110.00, 120.00) when, with intent to cause physical injury, he engages in conduct which tends to cause injury to such person or a third party. In order to establish an attempt, the People must prove that defendant's conscious objective was to commit the specific offense, here, assault in the third degree, and that he engaged in some affirmative act to carry out said objective ( see Penal Law § 15.05; see also People v Coleman, 74 NY2d 381, 383; People v Bracey, 41 NY2d 296). It is well settled that a defendant may be presumed to intend the natural consequences of his actions ( see People v Getch, 50 NY2d 456, 465; People v Walker , 30 AD3d 215 ) and that intent can be inferred from the surrounding circumstances ( see Matter of Marcel F., 233 AD2d 442) or the totality of the conduct of the accused ( People v Horton, 18 NY2d 355, 359; People v Roman , 13 AD3d 1115 ). Defendant's conduct in hitting the victim in the face with a pocketbook, punching her repeatedly in the arm and continuing the attack by picking her up by the shoulders and throwing her to the ground, was legally sufficient to establish defendant's intent to cause physical injury ( see Matter of Jose B. , 47 AD3d 461 ; People v Mahoney , 6 AD3d 1104 ). In addition, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence ( see CPL 470.15; People v Danielson , 9 NY3d 342 ; People v Romero , 7 NY3d 633 ).
Defendant's contention that the evidence was legally insufficient to establish his guilt of driving while intoxicated is similarly unpreserved for appellate review and, in any event, without merit. The People's evidence established that defendant's eyes were glassy and bloodshot, he stumbled when he walked, he used his vehicle to help support himself while standing, he disobeyed the directions of a police officer after being stopped, and the odor of alcohol emanated from his breath. Moreover, prior to the stop, the police officer observed defendant's vehicle hit the curb while making a wide turn, and defendant's fiancÉ testified that defendant was drinking alcohol a few hours before the stop. Such evidence was legally sufficient to establish defendant's guilt of driving while intoxicated beyond a reasonable doubt ( see People v Kane, 240 AD2d 516; People v Nedoroscik, 178 AD2d 684). Although defendant gave a different account of the events, his testimony merely presented an issue of credibility, and the resolution thereof, as well as the weight to be accorded the evidence, was primarily to be decided by the trier of fact, which had the opportunity to see and hear the witnesses ( see People v Romero , 7 NY3d 633 , supra). Such determination is afforded great weight on appeal and will not be disturbed unless clearly unsupported by the evidence ( see People v Garafolo, 44 AD2d 86, 88). The jury's verdict as to said charge is not against the weight of the evidence ( see CPL 470.15; People v Danielson , 9 NY3d 342 , supra; People v Romero , 7 NY3d 633 , supra).
Regarding defendant's remaining contention, we find that the 911 tape of the victim was properly admitted into evidence at trial as an exception to the hearsay rule ( see People v Simpson, 238 AD2d 611, 612).
Rudolph, P.J., Tanenbaum and Molia, JJ., concur.