Opinion
2013-06-26
The PEOPLE, etc., respondent, v. Clifford BERNADOTTE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Robert A. Gomez of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Robert A. Gomez of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Morgenstern, J.), rendered August 16, 2010, convicting him of criminal possession of a weapon in the second degree, criminal contempt in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting the “physical injury” element of assault in the third degree (Penal Law §§ 10.00[9], 120.00[1] ) is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Rambali, 27 A.D.3d 582, 583, 813 N.Y.S.2d 103). In any event, the claim is without merit ( see People v. Chiddick, 8 N.Y.3d 445, 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039;People v. Valencia, 50 A.D.3d 1163, 1164, 856 N.Y.S.2d 250). The defendant's contention that the verdict convicting him of assault in the third degree is against the weight of the evidence because of the paucity of proof of physical injury is also without merit ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;People v. Valencia, 50 A.D.3d at 1164, 856 N.Y.S.2d 250).
The defendant contends that he was deprived of a fair trial by repeated references to the fact that the trial judge had issued the order of protection he was accused of having violated. The defendant failed to preserve this claim for appellate review ( see CPL 470.05[2]; People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431;People v. Doyle, 15 A.D.3d 674, 675, 791 N.Y.S.2d 583). In any event, the order of protection was properly admitted into evidence, and the court's instructions to the jury ensured that its verdict would be based solely on the proof at trial ( cf. People v. McGriff, 201 A.D.2d 672, 673, 607 N.Y.S.2d 980).
The defendant's remaining contention is without merit.