Opinion
2012-01-10
The PEOPLE, etc., respondent, v. Thomas SILVA, appellant.
Steven Banks, New York, N.Y. (Adrienne Hale of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Allison Ageyeva of counsel), for respondent.
Steven Banks, New York, N.Y. (Adrienne Hale of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered June 30, 2009, convicting him of manslaughter in the first degree and assault in the second degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that his waiver of the right to a jury trial was inadequate ( see CPL 470.05[2]; People v. Magnano, 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572, cert. denied 502 U.S. 864, 112 S.Ct. 189, 116 L.Ed.2d 150). In any event, the record does not support the defendant's contention that the waiver was invalid, as he executed a written waiver in open court, which was approved by the trial justice, and the circumstances surrounding the waiver supported the Supreme Court's determination that the waiver was made knowingly, voluntarily, and intelligently ( see CPL 320.10[2]; People v. Smith, 6 N.Y.3d 827, 828, 817 N.Y.S.2d 575, 850 N.E.2d 622, cert. denied 548 U.S. 905, 126 S.Ct. 2971, 165 L.Ed.2d 953; People v. O'Diah, 68 A.D.3d 787, 888 N.Y.S.2d 892; People v. Fani, 59 A.D.3d 460, 872 N.Y.S.2d 535; People v. Jones, 293 A.D.2d 627, 740 N.Y.S.2d 242).
The defendant also failed to preserve for appellate review his contention that there was legally insufficient evidence as to the intent element of the count of assault in the second degree under Penal Law § 120.05(3) ( see CPL 470.05[2]; People v. Finger, 95 N.Y.2d 894, 716 N.Y.S.2d 34, 739 N.E.2d 290; People v. Cortes, 44 A.D.3d 1068, 844 N.Y.S.2d 403). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that there was legally sufficient evidence that the defendant acted with the intent to prevent a police officer from performing his lawful duties, for purposes of that count ( see People v. Harley, 74 A.D.3d 1090, 1091, 905 N.Y.S.2d 617; People v. Jenkins, 49 A.D.3d 780, 781, 853 N.Y.S.2d 629; People v. Coulanges, 264 A.D.2d 853, 696 N.Y.S.2d 466). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt for assault in the second degree was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).