Opinion
570432/06.
Decided on May 21, 2008.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Evelyn Laporte, J.), rendered June 8, 2006, after a nonjury trial, convicting him of attempted assault in the third degree and harassment in the second degree, and imposing sentence.
Judgment of conviction (Evelyn Laporte, J.), rendered June 8, 2006, affirmed.
PRESENT: McKeon, P.J., Davis, Schoenfeld, JJ.
Defendant failed to renew his motion for a trial order of dismissal following his testimony at trial and his initial objection was not directed to the alleged deficiencies in the People's proof now advanced. Thus, defendant's present challenges to the sufficiency of the evidence are unpreserved ( see People v Hines, 97 NY2d 56, 62), and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. The trial court, as factfinder, reasonably could conclude that defendant repeatedly struck the victim (his girlfriend) and did so with the requisite criminal intent, based on the credited police account of their observations of the defendant's positioning and rapid arm movements while "straddling" the victim inside the taxi, as well as the victim's appearance and statements immediately after the police pulled defendant off of her. We further find that the verdict was not against the weight of the evidence. There is no basis for disturbing the court's credibility determinations.
The court properly declined to draw a missing witness inference with respect to the nontestifying victim, in view of the People's persuasive showing that the victim would not cooperate with them and "was, if anything, favorable to or under the influence of [defendant] and hostile to the [People], rather than the other way around" ( People v Royster, 18 AD3d 375, 375-376, lv denied 5 NY3d 794, quoting People v Hernandez, 256 AD2d 18, 19, lv denied 93 NY3d 874).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur