PEOPLE v. ROSS (2007)

 Defendant appeals from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10[1] ), assault in the second degree (§ 120.05[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Defendant failed to preserve for our review his contention that County Court erred in failing to charge assault in the third degree under Penal Law § 120.00(3) as a lesser included offense of assault in the first or second degree (see People v. White, 29 A.D.3d 457, 458, 816 N.Y.S.2d 416, lv. denied 7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810;  People v. Pross, 302 A.D.2d 895, 898, 754 N.Y.S.2d 792, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296), and 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] ).   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, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The jury was entitled to credit the testimony of the victim over that of defendant (see People v. Mallory, 191 A.D.2d 970, 595 N.Y.S.2d 266), and “it cannot be said that the jury failed to give the evidence the weight it should be accorded” (People v. Woods, 26 A.D.3d 818, 819, 810 N.Y.S.2d 274, lv. denied 7 N.Y.3d 756, 819 N.Y.S.2d 882, 853 N.E.2d 253, 7 N.Y.3d 765, 819 N.Y.S.2d 890, 853 N.E.2d 261;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's general objection to the testimony of the paramedic concerning the severity of the victim's injury is insufficient to preserve for our review defendant's present contention with respect to that testimony (see People v. Singletary, 270 A.D.2d 903, 706 N.Y.S.2d 551, lv. denied 95 N.Y.2d 838, 713 N.Y.S.2d 145, 735 N.E.2d 425), and 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] ).   Contrary to defendant's further contention, the court properly exercised its discretion in limiting the cross-examination of the victim (see People v. Jorge, 1 A.D.3d 121, 122, 766 N.Y.S.2d 353, lv. denied 1 N.Y.3d 629, 777 N.Y.S.2d 28, 808 N.E.2d 1287).   Even assuming, arguendo, that the court erred in allowing the prosecutor to ask leading questions during his direct examination of the police officer who interviewed defendant, we conclude that the error is harmless (see People v. Konsistorum, 3 A.D.3d 394, 395, 769 N.Y.S.2d 901, lv. denied 2 N.Y.3d 763, 778 N.Y.S.2d 781, 811 N.E.2d 43).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: