PEOPLE v. MABLETON (2005)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullin, J., at trial;  Kerins, J., at sentencing), rendered April 18, 2003, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to establish that the hot bath water that scalded the subject child was used as a dangerous instrument (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Smith, 303 A.D.2d 426, 427, 755 N.Y.S.2d 871;  People v. Ibarra, 273 A.D.2d 87, 710 N.Y.S.2d 878).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence was legally sufficient to establish the defendant's guilt of assault in the second degree (see Penal Law § 120.05[4];  People v. Mattison, 226 A.D.2d 924, 924-925, 641 N.Y.S.2d 182;  People v. Holden, 188 A.D.2d 757, 759-760, 590 N.Y.S.2d 939;  People v. Durkin, 132 A.D.2d 668, 668-669, 518 N.Y.S.2d 38).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5] ).

The defendant's remaining contentions either are unpreserved for appellate review, without merit, or do not require reversal.