THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LUCIANO ORTIZ DEFENDANT APPELLANT (2011)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LUCIANO ORTIZ, DEFENDANT–APPELLANT.

KA 09–00166

Decided: November 10, 2011

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT–APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

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 nonjury verdict of assault in the second degree (Penal Law § 120.05 [former (3) ] ). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he made only a general motion for a trial order of dismissal (see People v. Gray, 86 N.Y.2d 10, 19). In addition, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495). We also conclude that the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court

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