The People, etc., respondent, v. Gabriel Dilly, appellant. (2011)

Argued—April 11, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser, J.), rendered June 24, 2009, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of assault in the second degree pursuant to Penal Law § 120.05(2) in connection with an incident that occurred inside a Brooklyn night club.   The jury found that the defendant caused physical injury to the complainant by means of a dangerous instrument.   On appeal, the defendant contends that the evidence was legally insufficient and the verdict of guilt was against the weight of the evidence inasmuch as the People failed to prove beyond a reasonable doubt that he used a dangerous instrument rather than simply punching the complainant during the altercation.

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 that the defendant used a dangerous instrument.   Moreover, upon reviewing the record here, we are satisfied that the verdict of guilt as to assault in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).   The People presented uncontroverted expert medical testimony from the physician who supervised a surgery to repair the complainant's tear duct days after the incident.   This medical expert testified that the injury to the complainant's lower eyelid, which he called a laceration, could only have been caused by “an object with an edge” and could not have been caused by a fist (see People v. Wade, 274 A.D.2d 438;  People v. Vincent, 231 A.D.2d 444).

The defendant's contentions that he was deprived of a fair trial by prosecutorial misconduct during summation are unpreserved for appellate review (see CPL 470.05[2];  People v. Romero, 7 NY3d 911, 912;  People v. Carrieri, 49 AD3d 660, 662), are without merit, or constitute harmless error in light of the overwhelming evidence of his guilt (see People v. Crimmins, 36 N.Y.2d 230, 242;  People v. Brody, 82 AD3d 784;  People v. Porco, 71 AD3d 791, 794, lv granted 15 NY3d 854).

The defendant received the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712).   The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contentions are without merit.

RIVERA, J.P., DICKERSON, HALL and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court