Opinion
No. 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.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), rendered December 28, 2018. 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.
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 [4th Dept 2022], lv denied 38 N.Y.3d 1009 [2022]; People v Brown, 159 A.D.3d 1415, 1416 [4th Dept 2018], lv denied 31 N.Y.3d 1115 [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 [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 [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 [4th Dept 2011], lv denied 16 N.Y.3d 894 [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 [4th Dept 2016], lv denied 28 N.Y.3d 972 [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 [3d Dept 2022], lv denied 39 N.Y.3d 1077 [2023]; People v Cruz, 175 A.D.3d 1060, 1061 [4th Dept 2019], lv denied 34 N.Y.3d 1016 [2019]).
Finally, the sentence is not unduly harsh or severe.