Opinion
No. KA 09-00921.
October 1, 2010.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered April 15, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.
Present — Martoche, J.P., Carni, Green, Pine and Gorski, JJ.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10). The evidence, viewed in the light most favorable to the People ( see People v Contes, 60 NY2d 620, 621) is legally sufficient to support the conviction ( see generally People v Bleakley, 69 NY2d 490, 495). As defendant correctly concedes, the People presented legally sufficient evidence establishing that his pit bull terrier constituted a dangerous instrument within the meaning of Penal Law § 10.00 (13) ( see People v Garraway, 187 AD2d 761, 761-762, lv denied 81 NY2d 886), and that the pit bull caused the victim to sustain serious physical injury, here, "serious and protracted disfigurement," within the meaning of Penal Law § 10.00 (10) ( see People v Whyte, 47 AD3d 852, 853-854; People v Walos, 229 AD2d 953). Defendant contends, however, that the evidence is legally insufficient to establish that he intended to cause such injury. We reject that contention ( see People v Truesdale, 186 AD2d 496, lv denied 81 NY2d 766). In addition, viewing the evidence in light of the elements of the crime of assault as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495). "Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, [we] must give '[g]reat deference . . . [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor'" ( People v Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831, quoting Bleakley, 69 NY2d at 495). We see no reason to disturb the jury's determination to credit the testimony of the victim in this case ( see People v Flagg, 59 AD3d 1003, lv denied 12 NY3d 853). Finally, the sentence is not unduly harsh or severe.