THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ETHAN MILLER DEFENDANT APPELLANT (2012)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of assault in the second degree (Penal Law § 120.05[2], [9] ).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), and affording the appropriate deference to the jury's credibility determinations (see People v. Hill, 74 AD3d 1782, 1782–1783, lv denied 15 NY3d 805), 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).   Contrary to defendant's contention, scalding hot water constitutes a “dangerous instrument” (§ 120.05[2];  see People v. Mableton, 17 AD3d 383, 383, lv denied 4 NY3d 888;  People v. Cruz, 257 A.D.2d 664;  People v. Holden, 188 A.D.2d 757, 760, lv denied 81 N.Y.2d 887), and the People were not required to establish the precise temperature of the water or the length of exposure that caused second degree immersion burns to the feet and ankles of the child victim.

Defendant further contends that County Court violated his constitutional right to present a defense when it precluded him from offering hearsay testimony regarding the fact that children of the victim's mother were previously removed from her custody and placed in foster care (see generally Chambers v. Mississippi, 410 U.S. 284, 302).   That contention is not preserved for our review (see People v. Gonzalez, 54 N.Y.2d 729, 730;  People v. Simmons, 283 A.D.2d 306, 306, lv denied 96 N.Y.2d 924) and, in any event, it is without merit inasmuch as defendant made no effort to establish such fact by a means other than inadmissible hearsay.

Frances E. Cafarell

Clerk of the Court