Opinion
No. KA 07-02556.
April 30, 2010.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), rendered May 3, 2007. The judgment convicted defendant, upon a nonjury verdict, of assault in the second degree.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (ELIZABETH CLIFFORD OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjury verdict, of assault in the second degree (Penal Law § 120.05). Defendant failed to preserve for our review his contention that the indictment is duplicitous ( see People v Backus, 67 AD3d 1428, 1429, lv denied 13 NY3d 936), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495).