PEOPLE v. KEARSLEY (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D. Hollie, J.), rendered September 16, 2019, convicting her of assault in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged, inter alia, with assault in the third degree arising out of a physical altercation amongst several people at the Baisley Park Houses in Queens in 2017.  After a nonjury trial, the defendant was convicted of assault in the third degree.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to disprove the defendant's justification defense and to establish the defendant's guilt of assault in the third degree beyond a reasonable doubt (see Penal Law § 120.00;  People v. King, 85 A.D.3d 820, 925 N.Y.S.2d 561).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence pursuant to CPL 470.15(5), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “[T]he appropriate standard for evaluating [a] weight of the evidence argument is the same, regardless of whether the factfinder was a judge or jury” (People v. Rojas, 80 A.D.3d 782, 782, 915 N.Y.S.2d 602 [internal quotation marks omitted];  see People v. King, 85 A.D.3d at 821, 925 N.Y.S.2d 561).  Upon our review of the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, the Supreme Court did not err in declining her request for a missing witness charge, as the People demonstrated that any testimony that this witness could have provided would have been cumulative (see People v. Williams, 195 A.D.3d 1050, 1051, 146 N.Y.S.3d 812), and defense counsel was permitted to comment during summation on the People's failure to call the witness in question (see People v. Grant, 170 A.D.3d 888, 890, 96 N.Y.S.3d 104).

The defendant's remaining contention is without merit.

BRATHWAITE NELSON, J.P., VOUTSINAS, LANDICINO and MCCORMACK, JJ., concur.