Opinion
2018-252 S CR
08-27-2020
The PEOPLE of the State of New York, Respondent, v. Alexander DIECKHOFF, Appellant.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Suffolk County District Attorney (Lauren Tan of counsel), for respondent.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant.
Suffolk County District Attorney (Lauren Tan of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ.
ORDERED that the judgment of conviction is affirmed.
Following a nonjury trial, defendant was found guilty of criminal obstruction of breathing or blood circulation ( Penal Law § 121.11 [a] ). On appeal, defendant contends that the District Court improperly allowed a police officer to testify regarding speculative matters; that the District Court improperly precluded the defense witness from testifying regarding a conversation she had had with the complainant; that the evidence was legally insufficient; and that, in any event, the verdict was against the weight of the evidence.
Although defense counsel moved for a trial order of dismissal at the close of the People's case, she did not renew the motion after presenting evidence and, therefore, subsequent review of the determination of that motion has been waived (see People v. Mackey , 28 Misc 3d 137[A], 2010 NY Slip Op. 51462[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010] ). Nevertheless, since there is no preservation requirement associated with defendant's contention that the verdict by the court was against the weight of the evidence, we necessarily determine whether all of the elements of the crime were proven beyond a reasonable doubt as part of our weight of the evidence review (see People v. Danielson , 9 NY3d 342, 348-349 [2007] ; People v. Thiel , 134 AD3d 1237 [2015] ). Since a different verdict would have not been unreasonable (see People v. Zephyrin , 52 AD3d 543 [2008] ), this court "must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ " ( People v. Bleakley , 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v. Miller , 291 NY 55, 62 [1943] ).
At the trial, the complainant testified that, on September 29, 2016, she was at defendant's house and defendant got angry with her for talking to a male on her phone. After defendant grabbed her phone, they got into a physical altercation and, as she tried to leave the house, defendant grabbed her by the hair and put his right hand on her throat and squeezed, which caused her to be unable to breathe. The complainant's mother testified that when the complainant came home on the night of September 29th, she was hysterical, her clothing was in disarray, the right side of her neck was red and the area from her collar bone to her armpit was bruised.
A police officer testified that, on September 29, 2016, he went to the complainant's house and spoke to her. She appeared upset and told him that she had been at defendant's house, where defendant had pushed and scratched her. However, the complainant did not know defendant's last name. The officer observed injuries on the complainant. Based on what the complainant had told him, the officer wrote up the incident as a harassment case, and his incident report was submitted for further investigation. A second police officer testified that, on September 30, 2016, he was assigned the harassment report. He thereafter spoke to the complainant, who told him that defendant had put his hands around her neck and applied pressure. The officer, therefore, changed the charge from harassment to criminal obstruction of breathing or blood circulation.
Defendant's mother testified that she was in bed when she heard the complainant shouting and yelling from downstairs. She drove the complainant home and the complainant appeared to be fine. While the complainant was a little upset, she was not having difficulty breathing and did not appear to be physically injured. Defendant's mother did not observe defendant having any contact with the complainant.
Upon the exercise of our factual review power (see CPL 470.15 [5] ; People v. Danielson , 9 NY3d at 348-349 ), while according great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Lane , 7 NY3d 888, 890 [2006] ; People v. Bleakley , 69 NY2d at 495 ), we find that the verdict convicting defendant of criminal obstruction of breathing or blood circulation was not against the weight of the evidence (see People v. Romero , 7 NY3d 633, 643-646 [2006] ).
Defendant's contentions regarding the evidentiary rulings of the District Court are unpreserved for appellate review (see People v. Gray , 86 NY2d 10, 20 [1995] ; People v. George , 67 NY2d 817, 818 [1986] ), and we decline to review them in the interest of justice.
Accordingly, the judgment of conviction is affirmed.
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.