PEOPLE v. JOHNSON (2008)

 Defendant appeals from a judgment convicting him, following a jury trial, of assault in the first degree (Penal Law § 120.10 [1] ), attempted assault in the first degree (§§ 110.00, 120.10[1] ) and criminal possession of a weapon in the third degree (§ 265.02[7] ).   Defendant correctly concedes that he failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of assault and attempted assault (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;  People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396) and, in any event, we conclude that his contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The People presented evidence establishing that the assault victim sustained a serious physical injury, i.e., a fractured jaw that was wired shut for four to five weeks (see Matter of Tirell R., 33 A.D.3d 804, 805, 822 N.Y.S.2d 615;  People v. Davis, 191 A.D.2d 705, 595 N.Y.S.2d 792), and they presented evidence establishing the remaining elements of assault and attempted assault (see §§ 110.00, 120.10[1] ).

 We reject defendant's further contention that the verdict is 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).   Although there was conflicting evidence with respect to the identity of the perpetrator, we accord great deference to the opportunity of the jury “to view the witnesses, hear the testimony and observe demeanor,” and we decline to disturb its determination to credit the testimony identifying defendant as the perpetrator (id.).

 Defendant failed to preserve for our review his contention that the prosecutor engaged in prosecutorial misconduct during summation (see People v. Wright, 269 A.D.2d 831, 703 N.Y.S.2d 782, lv. denied 94 N.Y.2d 946, 950, 954, 710 N.Y.S.2d 2, 3, 7, 11, 731 N.E.2d 619, 620, 624, 628).   In any event, that contention lacks merit because the prosecutor “did not exceed the broad bounds of rhetorical comment permissible in closing argument” (People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885).   We further conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant failed to preserve for our review his contentions concerning the duration of the orders of protection, and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see People v. Bennett, 48 A.D.3d 1031, 849 N.Y.S.2d 836).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: