The People, etc., respondent, v. Cornell Kelly, appellant. (2014)

Argued—January 21, 2014

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered May 5, 2010, convicting him of assault in the second degree, assault in the third degree, and petit larceny, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's argument with respect to the legal sufficiency of the evidence establishing that he used a “dangerous instrument” to injure the complainant as required to support his conviction of assault in the second degree (Penal Law § 120.05[4] ) is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 20–21), and, in any event, without merit (see People v. Cephas, 107 AD3d 821;  People v. Warren, 98 AD3d 634, 637;  People v. Phillips, 256 A.D.2d 733, 735).   With respect to the defendant's remaining arguments regarding the legal sufficiency of the evidence, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish that the defendant committed the crimes of assault in the second degree (Penal Law § 120.05[4];  see People v. Abera, 2 AD3d 1155, 1156;  People v. DiBella, 277 A.D.2d 699, 702;  People v. Cunningham, 222 A.D.2d 727, 728;  People v. Acton, 149 A.D.2d 839, 841), assault in the third degree (Penal Law § 120.00[1];  see People v. Chiddick, 8 NY3d 445, 447;  People v. Bernadotte, 107 AD3d 1012;  People v. Valencia, 50 AD3d 1163;  People v. Berry, 273 A.D.2d 120, 121;  People v. Brown, 243 A.D.2d 749), and petit larceny (Penal Law § 155.25;  see People v. Brooks, 79 N.Y.2d 1043, 1045, cert denied 506 U.S. 899;  People v. Perez, 93 AD3d 1032, 1035–1036;  People v. Livigni, 288 A.D.2d 323, 324).

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 fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946;  People v. Bleakley, 69 N.Y.2d 490, 495).   Upon reviewing the record here, we are satisfied that the verdict of guilt as to all of the crimes was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

DILLON, J.P., BALKIN, COHEN and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court