PEOPLE v. BELL (2021)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him following a nonjury trial of assault in the second degree (Penal Law § 120.05 [7]), defendant contends that the evidence is legally insufficient to establish that he intended to cause physical injury to the victim and that the victim sustained a physical injury. Because defendant's motion for a trial order of dismissal was not “ ‘specifically directed’ at th[ose] alleged error[s],” defendant failed to preserve his contention for our review (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]). Nevertheless, “ ‘we necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of defendant's challenge regarding the weight of the evidence’ ” (People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012]). Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), 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, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Indeed, based upon our independent review of the evidence, we conclude that a different verdict would have been unreasonable (see People v. Peters, 90 A.D.3d 1507, 1508, 934 N.Y.S.2d 734 [4th Dept. 2011], lv denied 18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007 [2012]; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The video of the jail fight supports the conclusion that defendant had the requisite intent to cause physical injury by repeatedly punching the victim (see People v. Hernandez, 192 A.D.3d 1528, 1531, 145 N.Y.S.3d 224 [4th Dept. 2021], lv denied 37 N.Y.3d 957, 147 N.Y.S.3d 529, 170 N.E.3d 403 [2021]; People v. Stover, 174 A.D.3d 1150, 1151-1153, 105 N.Y.S.3d 194 [3d Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 632, 134 N.E.3d 631 [2019]; see also People v. Lovenia V., 128 A.D.3d 537, 537, 8 N.Y.S.3d 560 [1st Dept. 2015], lv denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015]) and that the victim sustained a physical injury from the attack (see People v. Rudge, 185 A.D.3d 1214, 1216-1217, 126 N.Y.S.3d 247 [3d Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020]; see generally People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007]).

Defendant's contention that County Court erred in failing to consider a justification defense pursuant to Penal Law § 35.15 (1) is not preserved for our review because he did not request a justification charge under that section (see People v. Hardy, 166 A.D.3d 645, 647, 88 N.Y.S.3d 54 [2d Dept. 2018], lv denied 32 N.Y.3d 1172, 97 N.Y.S.3d 639, 121 N.E.3d 267 [2019]; People v. Acevedo, 84 A.D.3d 1390, 1391, 925 N.Y.S.2d 523 [2d Dept. 2011], lv denied 17 N.Y.3d 951, 936 N.Y.S.2d 77, 959 N.E.2d 1026 [2011]; see also People v. Brown, 194 A.D.3d 1399, 1400, 149 N.Y.S.3d 397 [4th Dept. 2021]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).