Opinion
570405/03, 04-085.
Decided November 21, 2005.
Defendant appeals from a judgment of Criminal Court, New York County (Robert M. Stolz, J.), rendered January 15, 2003 after a jury trial, convicting him of assault in the third degree (Penal Law § 120.00), and imposing sentence.
Judgment of conviction rendered January 15, 2003 (Robert M. Stolz, J.) affirmed.
PRESENT: SUAREZ, P.J., McCOOE, GANGEL-JACOB, JJ.
Defendant's present challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see People v. Gray, 86 NY2d 10), and we decline to review it in the interest of justice. In any event, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 NY2d 620), the defendant's conduct in "lung[ing]" at the complainant, punching him in the face, and attempting to kick him as he lay prone on the ground, was legally sufficient to establish beyond a reasonable doubt that defendant assaulted the complainant without justification. To the extent that defendant's proported legal sufficiency argument — impugning the complainant's testimony as "inconsistent and highly unreliable" — is in reality a challenge to the conviction on weight of the evidence grounds, it is similarly lacking in merit. Issues of credibility were properly placed before the jury and we see no reason to disturb its determinations ( see People v. Gaimari, 176 NY 84, 94).
Also unpreserved are defendant's arguments relating to the introduction of demeanor evidence, and we decline to review them in the interest of justice. Were we to review these claims, we would find no evidentiary error. Testimony that defendant was smiling and appeared "happy" at the time of and after his arrest did not constitute impermissible comment on defendant's right to remain silent, but rather was an appropriate observation of the defendant's deportment that tended to contradict the central justification defense asserted by defendant at trial ( see People v. Bido, 235 AD2d 288, 289, lv denied 89 NY2d 1009; People v. Rosario, 298 AD2d 244, 245. As Criminal Court correctly noted in its written decision denying defendant's CPL 330.30 motion ( 194 Misc 2d 799, 802):
"[D]efendant's laughter and smiling was not simply indirect or speculative proof of 'consciousness of guilt.'
Rather it was exactly what it appeared to be — direct evidence that he . . . regarded the events of the day as a source of extreme amusement and reason for celebration. Defendant's broad comic demeanor clearly evinced his contemporaneous intent. This was evidence the jury was entitled to hear."
Finally, defendant's claims of misconduct by the prosecutor during summation are lacking in merit. The challenged comments were fair response to the defense summation and did not shift the burden of proof or deprive defendant of a fair trial see People v. Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v. D'Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884.
This constitutes the decision and order of the court.