Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Brianna M. MASSEY, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
Opinion
MEMORANDUM: Defendant was convicted following a nonjury trial of assault in the first degree (Penal Law § 120.10[1] ) for cutting another woman in the face and arm with a razor blade during a physical altercation. Defendant contends that the evidence of her intent to commit the crime is legally insufficient to support the conviction and that the verdict is against the weight of the evidence. Defendant failed to preserve for our review her contention concerning the legal sufficiency of the evidence by failing to renew her motion for a trial order of dismissal after presenting evidence (see People v. Goley, 113 A.D.3d 1083, 1083, 977 N.Y.S.2d 847 ; People v. Heary, 104 A.D.3d 1208, 1209, 960 N.Y.S.2d 812, lv. denied 21 N.Y.3d 943, 968 N.Y.S.2d 6, 990 N.E.2d 140, reconsideration denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 ). In any event, we conclude that the verdict is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), and, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). With respect to the element of intent, defendant admitted in her testimony that she caused the victim's injuries by slashing at her with a razor blade, and she “ ‘may be presumed to intend the natural and probable consequences of [her] actions' ” (People v. Boley, 126 A.D.3d 1389, 1390, 5 N.Y.S.3d 773, lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 ; see People v. Mahoney, 6 A.D.3d 1104, 1104, 776 N.Y.S.2d 402, lv. denied 3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575 ).
We reject defendant's contention that County Court erred in discrediting her justification defense. There was no evidence that the victim was armed or was attempting to use deadly physical force against defendant when defendant used the razor blade. Additionally, the testimony of the victim and other witnesses suggested that defendant had the opportunity to retreat, and failed to do so, making a justification defense inapplicable under the circumstances herein (see Penal Law § 35.15[2][a] ; People v. Robinson, 1 A.D.3d 1022, 1023, 767 N.Y.S.2d 537, lv. denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291 ). Although defendant provided contradictory testimony, based upon our independent review of the evidence pursuant to CPL 470.15(5) and giving “[g]reat deference ... to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor” (Robinson, 1 A.D.3d at 1023, 767 N.Y.S.2d 537 [internal quotation marks omitted] ), we conclude that the court's rejection of the justification defense was not contrary to the weight of the evidence. The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.