Opinion
11723 Ind. 3867/16
06-25-2020
The PEOPLE of the State of New York, Respondent, v. Elijah JOHNSON, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (David Crow of counsel) and Dechert LLP, New York (Ryan Strong of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (David Crow of counsel) and Dechert LLP, New York (Ryan Strong of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered November 15, 2017, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of 6½ years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. Viewed as a whole, the evidence, including expert testimony, supports the conclusion that defendant used a taser on the victim, which constituted a dangerous instrument because it was readily capable of causing serious physical injury under the circumstances of its use (see Penal Law § 10.00[13] ; People v. Richard, 30 A.D.3d 750, 753, 817 N.Y.S.2d 698 [3d Dept. 2006] lv denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ; People v. MacCary, 173 A.D.2d 646, 647, 570 N.Y.S.2d 322 [2d Dept. 1991], lv. denied 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421 [1991] ).