Opinion
2004-429 NCR.
Decided January 30, 2006.
Appeal from a judgment of the District Court of Nassau County, First District (Thomas Feinman, J., hearing and trial; Susan T. Kleuwer, J., post trial motion and sentence), rendered March 5, 2004. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree.
Judgment of conviction unanimously affirmed.
PRESENT:: RUDOLPH, P.J., McCABE and TANENBAUM, JJ
Defendant was charged with assault in the third degree for allegedly hitting the complainant. He subsequently waived his right to a jury trial, after which the trial court decided to hold a combined Wade hearing and trial, over defendant's objection. Thereafter, defendant was acquitted of assault in the third degree and convicted of the lesser included offense of attempted assault in the third degree.
It is well settled that the court which hears the suppression hearing is not disqualified from also presiding over the nonjury trial ( see People v. Moreno, 70 NY2d 403, 406). Generally, suppression issues should be decided prior to trial ( see CPL 710.40), but the trial court "may deviate from that procedure where . . . defendant consents thereto" ( see People v. Yousef, 236 AD2d 868, 869). Since defendant clearly objected to the combined suppression hearing and nonjury trial, it was error for the trial court to do so without his consent ( see e.g. People v. Restrepo, 295 AD2d 627; People v. Hanson, 256 AD2d 74; Yousef, 236 AD2d at 869; Matter of Dean S., 185 AD2d 324). However, since the evidence adduced at the combined hearing and trial was not so intertwined that this court could not determine what evidence the trial court relied on in making its determinations and, as the proof of guilt was overwhelming, we find that said error was harmless ( see e.g. Matter of Dean S., 185 AD2d 324, supra).
Absent any showing of prejudice, the trial judge, as the trier of fact, is presumed to have considered only the legally competent evidence adduced at the trial and excluded inadmissible evidence from its deliberations and verdict ( see e.g. People v. Palmer, 300 AD2d 412; People v. Tong Khu, 293 AD2d 424; People v. Concepcion, 266 AD2d 227; see also Moreno, 70 NY2d at 406). The record on appeal clearly indicates that the People's witnesses had an independent source for defendant's identification and there was really no identification issue since defendant admitted that he hit the complainant in self defense. Defendant's remaining contentions regarding identification have no merit or are unpreserved for appellate review.
Generally, if a request for the submission of a lesser included offense is made by either party, the court must submit, in the alternative, any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense ( see People v. Green, 56 NY2d 427, 430). Herein, the People requested the submission of the lesser included offense of attempted assault in the third degree, and the evidence adduced at trial supports a finding that the defendant committed such lesser offense, but did not commit assault in the third degree since defendant admitted hitting the complainant, but physical injury was not established. Consequently, the lesser included offense was properly considered. Defendant's remaining contentions regarding the verdict have no merit or are unpreserved for appellate review.
Although defendant made numerous objections at trial and moved to set aside the verdict, pursuant to CPL 330.30, he now contends, for the first time on appeal, that he was denied a fair trial due to the People's misconduct in knowingly presenting false testimony. Said contention, however, is unpreserved for appellate review in that defendant failed to object, or seek sanctions, when any witness allegedly proffered false testimony ( see People v. Hendricks, 2 AD3d 1450). Defendant cannot obtain relief based on this contention, in any event, since he failed to show actual knowledge of any false testimony on the People's part ( see e.g. People v. Brown, 56 NY2d 242, 246-247). We note that resolutions of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions of fact to be determined by the trier of fact, which saw and heard the witnesses ( see People v. Gaimari, 176 NY 84, 94), and absent any showing of prejudice, the trial judge, as the trier fact, is presumed to have considered only legally competent evidence ( see Concepcion, 266 AD2d at 227). A review of the record indicates that any inconsistencies in the testimony of the witnesses herein does not undermine their credibility to such a degree so as to render their testimony insufficient to prove defendant's guilt ( see e.g. People v. Martinez, 179 AD2d 520, 521; People v. McCaskill, 117 AD2d 757). The inconsistencies were insufficient to render the testimony incredible as a matter of law, and merely raised credibility issues ( see People v. Davis, 299 AD2d 420, 422).
Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 NY2d 620), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt of attempted assault in the third degree, and to disprove his justification defense ( see e.g. Matter of Argeis N., 257 AD2d 488), beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence ( see CPL 470.15). Furthermore, we find that since defendant has completed his term of probation, his contention regarding the sentence is moot.