THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMES GHENT III DEFENDANT APPELLANT (2015)

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[2] ).   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).  “In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference” (People v. Van Akin, 197 A.D.2d 845, 845).   County Court was entitled to reject defendant's version of the events “and, upon our review of the record, we cannot say that the court failed to give the evidence the weight that it should be accorded” (People v. Britt, 298 A.D.2d 984, 984, lv denied 99 N.Y.2d 556).   We reject defendant's further contention that he received ineffective assistance of counsel because counsel failed to request a charge on the defense of intoxication.   Defendant failed to “demonstrate the absence of strategic or other legitimate explanations for counsel's failure to request” that charge (People v. Rivera, 71 N.Y.2d 705, 709;  see People v. Taylor, 1 NY3d 174, 177).   Indeed, “[a] defense of intoxication would have been inconsistent with ․ defendant's [testimony] ․ that he” drank three or four beers that evening, which affected his judgment to a certain extent, but that he was not intoxicated (People v. Gary, 299 A.D.2d 960, 961, lv denied 99 N.Y.2d 582).   Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court