PEOPLE v. ZEIFMAN (2004)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered April 2, 2003, convicting defendant, after a jury trial, of endangering the welfare of a child, and sentencing him to a conditional discharge for a period of 1 year and 50 hours of community service, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   There is no basis for disturbing the jury's determinations concerning credibility, including its rejection of defendant's incredible testimony, which was contradicted by the statements he made at the scene.   Credible testimony from disinterested bystanders, along with medical evidence, established that defendant forcefully kicked a five-year-old child, causing him to fall against a wall.   Defendant's conduct created the type of risk to a child contemplated by the statute (Penal Law § 260.10[1] ).   The fact that defendant was acquitted of the assault and attempted assault charges does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.