Opinion
2007-1207 OR CR.
Decided November 24, 2008.
Appeal from a judgment of the Justice Court of the Town of Cornwall, Orange County (Francis Navarra, J.), rendered July 11, 2007. The judgment convicted defendant, after a nonjury trial, of menacing in the second degree.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
Defendant was charged with menacing in the second degree (Penal Law § 120.14). At trial, the complainant testified that defendant was driving a black Honda behind his dump truck and was trying to pass him on the road for approximately two miles. When the complainant finally pulled off to the side of the road, defendant stopped his vehicle and pointed a gun at him. Defendant admitted that he displayed a gun, but he testified it was in a holster at the time. Following the nonjury trial, defendant was found guilty as charged.
Contrary to defendant's contention on appeal, the information is legally sufficient since the factual portion thereof contains nonhearsay allegations which establish, if true, each and every element of the offense charged (CPL 100.15, 100.40; People v Alejandro, 70 NY2d 133). The factual part of the information explicitly incorporates by reference the defendant named in the caption of said accusatory instrument, and alleges that he displayed a gun at the complainant, which placed the complainant in reasonable fear of physical injury or death (Penal Law § 120.14). We note that defendant's intent may be inferred from the defendant's conduct and the surrounding circumstances" ( People v Bracey, 41 NY2d 296, 302 [internal quotation marks omitted]). Additionally, taken as a whole, the information containing the complainant's sworn statement serves the required purpose of putting defendant on notice of the charge against him with sufficient detail to prevent him from being tried twice for the same offense ( see People v Casey, 95 NY2d 354, 360).
Viewing the evidence in the light most favorable to the People ( see People v Contes, 60 NY2d 620), we find that the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt. The People's witness established that defendant displayed a gun to the complainant with the intention of placing him in reasonable fear of physical injury, serious physical injury or death, thereby establishing the elements of menacing in the second degree (Penal Law § 120.14). Upon our factual review power (CPL 470.15), we are satisfied that the verdict was not against the weight of the evidence ( see People v Danielson, 9 NY3d 342; People v Romero, 7 NY3d 633). We note that the minor inconsistencies in the complainant's testimony did not render his account of the incident incredible ( see People v Lopez , 40 AD3d 1119 ; People v Owens, 184 AD2d 533).
Additionally, we find that defendant's attorney's decision to waive a closing statement did not amount to a denial of the right to effective assistance of counsel ( see People v Rose, 307 AD2d 270). Accordingly, the judgment convicting defendant of menacing in the second degree is affirmed.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.