The People, etc., respondent, v. Jamie Rosales, appellant. (2018)

Submitted—March 26, 2018

DECISION & ORDER

Appeals by the defendant (1) from a judgment of the Supreme Court, Suffolk County (Mark D. Cohen, J.), rendered August 4, 2014, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated February 8, 2016, which denied, without a hearing, his motion to vacate the judgment pursuant to CPL 440.10.

ORDERED that the judgment and the order are 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 every element of the crime of assault in the second degree (see People v. Chiddick, 8 NY3d 445, 447;  People v. Perry, 122 AD3d 775, 776;  People v. Saeed, 60 AD3d 975, 977;  People v. Williams, 23 AD3d 589).  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;  People v. Bleakley, 69 N.Y.2d 490).  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 Supreme Court erred in dismissing count two of the indictment is unpreserved for appellate review and, in any event, without merit (see CPL 300.40[3][b];  People v. Miller, 6 NY3d 295, 300;  People v. Lowery, 150 AD3d 890, 892).

We agree with the Supreme Court's determination denying the defendant's motion to vacate the judgment pursuant to CPL 440.10 (see People v. Syvilee, 15 NY3d 391, 400;  People v. Schafer, 94 AD3d 778, 778–779;  People v. Waymon, 65 AD3d 708, 709).

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

The defendant's remaining contention is without merit.

LEVENTHAL, J.P., SGROI, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court