PEOPLE v. FRANCOIS (2020)

Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered February 16, 2017, convicting defendant, after a jury trial, of attempted assault in the second degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously affirmed.

This conviction arises out of an altercation that occurred when defendant allegedly attempted to deprive the victim of money in her possession. On appeal, defendant contends that the evidence was legally insufficient to sustain a guilty verdict, and that the verdict was against the weight of the evidence. Since defendant failed to preserve the issue of legal sufficiency, we decline to review that issue in the interest of justice (see People v. Graves, 171 A.D.3d 674, 99 N.Y.S.3d 36 [1st Dept. 2019], lv denied 33 N.Y.3d 1069, 105 N.Y.S.3d 36, 129 N.E.3d 356 [2019]; People v. Carter, 46 A.D.3d 376, 847 N.Y.S.2d 572 [1st Dept. 2007], lv denied 10 N.Y.3d 838, 859 N.Y.S.2d 398, 889 N.E.2d 85 [2008]).

When determining whether a verdict is against the weight of the evidence, “great deference is accorded to the factfinder's opportunity to view the witnesses, hear the testimony and observe demeanor” (People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004]). Upon review of the record, we are satisfied that the verdict was not against the weight of the evidence and find no basis to disturb the jury's credibility determinations. The victim, who was 67 years old, stated that defendant, who was decades younger than she, grabbed her by her shoulders and forced her to sit down on the stairs leading to the subway. He then attempted to take money from her closed fist. She testified that as a result of defendant's actions, she sustained pain “in the lower rump” and described the pain as “hard and strong.” The victim also testified that defendant scratched her hand, and when asked if she had any pain in her hand at the time she replied, “Yes, it was a burning, burning sensation.” Thus, there was a reasonable view of the evidence that defendant, by grabbing the victim, forcing her to sit down on concrete, and prying money from her hand, engaged in conduct that tended to cause physical injury to a person who is 65 years of age or older (see Penal Law §§ 110.00, 120.05[12]).