PEOPLE v. WATKINS (2009)

 Defendant appeals from a judgment convicting him following a nonjury trial of two counts of assault in the third degree (Penal Law § 120.00[1] ) and one count each of assault in the second degree (§ 120.05[2] ) and criminal possession of a weapon in the fourth degree (§ 265.01[2] ).   Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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 testimony of the People's witnesses was not incredible as a matter of law (see People v. Ptak, 37 A.D.3d 1081, 828 N.Y.S.2d 825, lv. denied 8 N.Y.3d 949, 836 N.Y.S.2d 559, 868 N.E.2d 242), and we see no reason to disturb County Court's resolution of credibility issues (see People v. Burroughs, 57 A.D.3d 1459, 869 N.Y.S.2d 827, lv. denied 12 N.Y.3d 756, 876 N.Y.S.2d 708, 904 N.E.2d 845;  People v. Reddick, 43 A.D.3d 1334, 1335-1336, 843 N.Y.S.2d 201 lv. denied 10 N.Y.3d 815, 857 N.Y.S.2d 48, 886 N.E.2d 813).   Although we agree with defendant that the court erred in precluding a defense witness from testifying that he heard the victim threaten defendant (see People v. Dixon, 138 A.D.2d 929, 526 N.Y.S.2d 269;  see generally People v. Petty, 7 N.Y.3d 277, 285, 819 N.Y.S.2d 684, 852 N.E.2d 1155;  People v. Miller, 39 N.Y.2d 543, 549, 384 N.Y.S.2d 741, 349 N.E.2d 841), we nevertheless conclude that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The proof of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see People v. Bruner, 222 A.D.2d 738, 739, 634 N.Y.S.2d 862, lv. denied 88 N.Y.2d 981, 649 N.Y.S.2d 387, 672 N.E.2d 613;  see generally Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   We note in particular that defendant presented extensive testimony in support of his justification defense and thus that he was afforded “a meaningful opportunity to present a complete defense” (People v. Ramsey, 59 A.D.3d 1046, 1048, 872 N.Y.S.2d 789 [internal quotation marks omitted];  see People v. Starostin, 265 A.D.2d 267, 698 N.Y.S.2d 6, lv. denied 94 N.Y.2d 885, 705 N.Y.S.2d 17, 726 N.E.2d 494;  cf. People v. Loria, 190 A.D.2d 1006, 593 N.Y.S.2d 629).

 As the People correctly concede, those parts of the judgment convicting defendant of assault in the third degree under counts one and two of the indictment must be reversed, and those counts dismissed, because assault in the third degree is a lesser included offense of assault in the second degree (see People v. Romain, 5 A.D.3d 611, 772 N.Y.S.2d 875, lv. denied 2 N.Y.3d 805, 781 N.Y.S.2d 305, 814 N.E.2d 477;  People v. Jones, 277 A.D.2d 329, 716 N.Y.S.2d 79, lv. denied 96 N.Y.2d 784, 725 N.Y.S.2d 649, 749 N.E.2d 218;  see generally CPL 300.40[3][b] ).  We therefore modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of assault in the third degree under counts one and two of the indictment and dismissing those counts of the indictment and as modified the judgment is affirmed.

MEMORANDUM: