THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAMIAN MATEO DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ).   The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621) is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   As defendant correctly concedes, the People presented legally sufficient evidence establishing that his pit bull terrier constituted a dangerous instrument within the meaning of Penal Law § 10.00(13) (see People v. Garraway, 187 A.D.2d 761, 761-762, lv denied 81 N.Y.2d 886), and that the pit bull caused the victim to sustain serious physical injury, here, “serious and protracted disfigurement,” within the meaning of Penal Law § 10.00(10) (see People v. Whyte, 47 AD3d 852, 853-854;  People v. Walos, 229 A.D.2d 953).   Defendant contends, however, that the evidence is legally insufficient to establish that he intended to cause such injury.   We reject that contention (see People v. Truesdale, 186 A.D.2d 496, lv denied 81 N.Y.2d 766).   In addition, viewing the evidence in light of the elements of the crime of assault as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).  “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, [we] must give ‘[g]reat deference ․ [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ “ (People v. Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831, quoting Bleakley, 69 N.Y.2d at 495).   We see no reason to disturb the jury's determination to credit the testimony of the victim in this case (see People v. Flagg, 59 AD3d 1003, lv denied 12 NY3d 853).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court