Opinion
2015-00489, Ind. No. 55/13.
05-18-2016
The PEOPLE, etc., respondent, v. Andrew McELROY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered February 20, 2014, convicting him of assault in the third degree, upon a jury verdict, as reduced by an order of the same court, also dated February 20, 2014, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contentions that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt and to support his conviction of assault in the third degree are unpreserved for appellate review, as he did not raise the specific grounds that he now raises on appeal on his motion for a trial order of dismissal made after the close of the evidence (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt and establish the defendant's guilt of assault in the third degree. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record, we are satisfied that the rejection of the justification defense and the verdict of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
In light of our determination on a related appeal by the People (see People v. McElroy, 139 A.D.3d 980, 31 N.Y.S.3d 593, 2016 WL 2889872 [Appellate Division Docket No. 2014–02764; decided herewith] ), the defendant's remaining contention is academic.
MASTRO, J.P., CHAMBERS, DICKERSON and CONNOLLY, JJ., concur.