PEOPLE v. OVERTON (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (David S. Zuckerman, J.), rendered March 13, 2019, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of assault in the second degree beyond a reasonable doubt.  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).  The defendant's contention that the evidence failed to establish the serious physical injury element of assault on a peace officer (Penal Law § 120.08) is rendered academic by his acquittal of that charge (see People v. Shearin, 177 AD3d 504, 504;  People v. Hairston, 167 AD3d 935, 936).

Contrary to the defendant's contention, the County Court did not deprive him of a fair trial by charging the jury on Penal Law § 35.10(2) and Correction Law § 137(5), which were already in evidence.  Whether a jury charge is appropriate in an individual case is generally “ ‘a matter for the Trial Judge's discretion’ ” (People v. Daniels, 225 A.D.2d 632, 632, quoting People v. Knight, 87 N.Y.2d 873, 874).  Given that the defendant requested a justification defense charge, which deems physical force justified where it is in response to the “use or imminent use of unlawful physical force by [another] person” (Penal Law § 35.15[1]), Penal Law § 35.10(2) and Correction Law § 137(5) provided the jury with important insight as to whether the correction officer's actions would be considered “unlawful” (see Penal Law § 35.10[2];  Correction Law § 137[5]).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

CONNOLLY, J.P., MALTESE, DOWLING and LOVE, JJ., concur.