Opinion
2008-1783 N CR.
Decided April 21, 2010.
Appeal from a judgment of the District Court of Nassau County, First District (Erica L. Prager, J.), rendered August 22, 2008. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree.
ORDERED that the judgment of conviction is affirmed.
PRESENT: MOLIA, J.P., LaCAVA and IANNACCI, JJ.
Insofar as is relevant to this appeal, defendant was charged with assault in the third degree. After a nonjury trial, defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00). On appeal, defendant contends that the verdict was against the weight of the evidence.
With respect to issues of credibility, in reviewing the evidence, we accord great deference to the fact-finder's "opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v Bleakley, 69 NY2d 490, 495). The victim testified that, moments after he had entered his home in an attempt to avoid further confrontation with defendant following a prior altercation in front of the victim's home, defendant had struck him on the left elbow with a length of wood. The District Court credited the testimony of two residents of the victim's home, one of whom stated that she had observed defendant, holding the piece of wood, run into the house moments after she and the victim had entered, raise the wood and bring it down in an overhead motion, striking the victim on the arm as the victim raised his arm to protect himself. The other witness, standing a short distance away, also saw defendant holding the stick, and although she did not witness the actual blow, her testimony at trial corroborated the testimony of the first witness. The People also introduced photographs of the wound and hospital treatment records. Defendant admitted striking the victim, but insisted that he did so in self-defense, on the walkway outside the house, during an altercation in which the victim threatened him with a knife, which knife was discovered lying on the ground near where defendant was arrested.
The District Court concluded that the victim's core testimony with respect to the attempted assault, which was corroborated by the credible testimony of two witnesses who were inside the house and near the door when defendant struck the blow, established beyond a reasonable doubt that defendant had struck the victim under the circumstances alleged by the victim, and not as asserted by defendant. We find no basis to disturb the District Court's credibility findings. The District Court also found that although the evidence did not establish a physical injury, it sufficed to prove defendant's attempt to inflict same. It is the appellate court's duty to weigh "the relative strength of conflicting inferences that may be drawn from the testimony" ( People v Bleakley, 69 NY2d at 495). In the exercise of our factual review power, we find that defendant's conviction of attempted assault in the third degree was not against the weight of the evidence ( see CPL 470.15; People v Danielson, 9 NY3d 342, 349; People v Romero, 7 NY3d 633, 644). It was not necessary that the proof establish physical injury ( People v Travis, 266 AD2d 410, 411), and defendant's intent can readily be inferred from his conduct ( People v Getch, 50 NY2d 456, 465; People v Bracey, 41 NY2d 296; People v Lewis , 46 AD3d 943 , 945). We are also satisfied that the evidence disproved defendant's justification defense beyond a reasonable doubt, as the credible testimony established that defendant had approached the victim from behind, after the latter had entered the house to avoid an encounter with defendant (Penal Law § 35.15).
We have examined defendant's remaining claim of error and find it without merit ( see CPL 710.60 [b]; People v Lopez, 5 NY3d 753, 754; People v Mendoza, 82 NY2d 415, 422; People v Cartwright , 65 AD3d 973 ; People v McGiboney , 62 AD3d 812 , 813).
Accordingly, the judgment of conviction is affirmed.
Molia, J.P., LaCava and Iannacci, JJ., concur.