Opinion
October 24, 1967
Appeal by the defendant from a judgment of conviction of assault, third degree, following a plea of guilty, on the sole ground that the sentence is excessive (one year). Pending the present appeal the defendant applied for a certificate of reasonable doubt and in denying the motion Mr. Justice ZELLER in a comprehensive and detailed memorandum set forth in the brief of the District Attorney outlined his reasons for such refusal and the factors which are to be considered on the issue of excessiveness. The record on this appeal shows that the defendant's acts were unjustified and vicious and that he inflicted upon the innocent victim, who attempted to avoid the conflict, serious personal injuries. Under the circumstances, the sentence was not excessive. Judgment affirmed. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.