Opinion
2013-07-24
The PEOPLE, etc., respondent, v. William VON THADEN, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Ames C. Grawert of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Ames C. Grawert of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Donnino, J.), rendered July 22, 2005, convicting him of attempted assault in the second degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of attempted assault in the second degree is unpreserved for appellate review ( see CPL 470.05[2]; People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430;People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see 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 fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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 was 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).
The defendant contends that reversal is warranted because the prosecutor exceeded the scope of the Supreme Court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413). However, defense counsel did not seek further relief or move for a mistrial after the Supreme Court sustained his objection and struck the testimony from the record, so the error must be deemed to have been cured to the defendant's satisfaction ( see People v. Gill, 54 A.D.3d 965, 965–966, 864 N.Y.S.2d 135). In any event, the defendant was not prejudiced by the prosecutor's questions, since the Supreme Court, in this nonjury trial, is presumed to have disregarded the stricken testimony ( see People v. Owens, 45 A.D.3d 1058, 1059, 845 N.Y.S.2d 563;People v. Kolon, 37 A.D.3d 340, 342, 830 N.Y.S.2d 539;see generally People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200).
The defendant also contends that the Supreme Court's denial of his request to produce the complainant's mental health records deprived him of his constitutional right to present a defense and confront witnesses against him. This contention is unpreserved for appellate review ( see People v. Valdez–Cruz, 99 A.D.3d 738, 739, 951 N.Y.S.2d 582;People v. Forte, 70 A.D.3d 963, 964, 897 N.Y.S.2d 133) and, in any event, is without merit ( see People v. Gissendanner, 48 N.Y.2d 543, 547–551, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Brown, 24 A.D.3d 884, 887, 806 N.Y.S.2d 262;People v. Davis, 203 A.D.2d 300, 610 N.Y.S.2d 63;cf. People v. Baranek, 287 A.D.2d 74, 733 N.Y.S.2d 704).