Opinion
427 KA 19-00323
06-09-2023
The PEOPLE of the State of New York, Respondent, v. Dwayne MACON, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree ( Penal Law § 120.10 [1] ), arising from an incident in which he repeatedly hit the victim with what appeared to be a metal pipe. Defendant failed to preserve for our review his challenge to County Court's Sandoval ruling (see People v. Noonan , 202 A.D.3d 1469, 1470, 158 N.Y.S.3d 910 [4th Dept. 2022], lv denied 38 N.Y.3d 1009, 168 N.Y.S.3d 370, 188 N.E.3d 562 [2022] ; People v. Brown , 159 A.D.3d 1415, 1416, 70 N.Y.S.3d 144 [4th Dept. 2018], lv denied 31 N.Y.3d 1115, 81 N.Y.S.3d 375, 106 N.E.3d 758 [2018] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's contention, "the fact that the [metal pipe purportedly used] by defendant during the incident was not recovered does not render ... the verdict against the weight of the evidence" ( People v. Cohens , 81 A.D.3d 1442, 1444, 917 N.Y.S.2d 492 [4th Dept. 2011], lv denied 16 N.Y.3d 894, 926 N.Y.S.2d 29, 949 N.E.2d 977 [2011] ). In addition, although an acquittal would not have been unreasonable in light of certain conflicting witness testimony, based upon our independent review of the evidence, and giving "[g]reat deference ... to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Massey , 140 A.D.3d 1736, 1738, 32 N.Y.S.3d 419 [4th Dept. 2016], lv denied 28 N.Y.3d 972, 43 N.Y.S.3d 259, 66 N.E.3d 5 [2016] [internal quotation marks omitted]), we conclude that the jury's rejection of the justification defense is not contrary to the weight of the evidence (see id. ; see also People v. DeCamp , 211 A.D.3d 1121, 1124, 178 N.Y.S.3d 829 [3d Dept. 2022], lv denied 39 N.Y.3d 1077, 184 N.Y.S.3d 280, 204 N.E.3d 1062 [2023] ; People v. Cruz , 175 A.D.3d 1060, 1061, 108 N.Y.S.3d 620 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 756, 138 N.E.3d 485 [2019] ).
Finally, the sentence is not unduly harsh or severe.