Opinion
2016–06776 Ind.No. 15–00225
11-21-2018
The PEOPLE, etc., Respondent, v. Leon RAAD, Appellant.
Salvatore C. Adamo, New York, NY, for appellant. Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger, Patrick J. Fischer, and Carrie A. Ciganek of counsel), for respondent.
Salvatore C. Adamo, New York, NY, for appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger, Patrick J. Fischer, and Carrie A. Ciganek of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the judgment, as amended, is affirmed.
The defendant was indicted for assault in the second degree pursuant to Penal Law § 120.05(3) and resisting arrest pursuant to Penal Law § 205.30. The charges arose from an incident that occurred on June 6, 2015, as three police officers responded to a report of a violent domestic dispute. After trial, the jury convicted the defendant on both counts. The County Court later sentenced him to the minimum term of imprisonment of two years for assault in the second degree (see Penal Law § 70.02 ), to run concurrently with a term of imprisonment of one year for resisting arrest. The defendant appeals.
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 establish beyond a reasonable doubt the defendant's guilt of assault in the second degree ( Penal Law § 120.05[3] ) and resisting arrest ( Penal Law § 205.30 ). Moreover, in fulfilling our responsibility to conduct an independent review 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 witnesses, hear the testimony, and observe demeanor (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence.
The defendant's contention that count one of the indictment, which charged him with assault in the second degree, was defective due to insufficiency of the factual allegations is unpreserved for appellate review (see CPL 470.05[2] ; People v. Iannone , 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 ) and, in any event, without merit (see CPL 200.50[7][a] ; People v. Rodriguez , 62 A.D.3d 728, 880 N.Y.S.2d 89 ; People v. Dudley , 289 A.D.2d 503, 736 N.Y.S.2d 48 ).
The defendant's contention that the trial court did not adequately respond to a jury note requesting clarification of the "definitions between assault & attempted assault" is unpreserved for appellate review (see CPL 470.05[2] ; People v. Morris , 27 N.Y.3d 1096, 36 N.Y.S.3d 52, 55 N.E.3d 1025 ) and, in any event, without merit (see People v. Malloy , 55 N.Y.2d 296, 301–302, 449 N.Y.S.2d 168, 434 N.E.2d 237 ).
We agree with the County Court's denial, without a hearing, of that branch of the defendant's motion which was to set aside the verdict pursuant to CPL 330.30(2), based upon alleged juror misconduct (see CPL 330.40[2][e] ; People v. Gerrara , 88 A.D.3d 811, 813–814, 930 N.Y.S.2d 646 ; People v. Bab Lin You , 264 A.D.2d 780, 780, 694 N.Y.S.2d 760 ; People v. Cervantes , 242 A.D.2d 730, 731, 662 N.Y.S.2d 802 ).
The defendant was not deprived of the effective assistance of counsel (see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Benevento , 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
Since the defendant has completed the sentence imposed, the issue of whether the sentence was excessive has been rendered academic (see People v. Russillo , 27 A.D.3d 493, 494, 812 N.Y.S.2d 574 ).
The defendant's remaining contention is without merit.
DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.