PEOPLE v. YOUNG (2018)

DECISION & ORDER

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt of burglary in the first degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence was legally sufficient to establish the defendant's guilt of that crime 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 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), 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, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt as to that count 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).

However, as the People correctly concede, the defendant's conviction of assault in the second degree under Penal Law § 120.05(6) is a lesser-included offense of robbery in the second degree under Penal Law § 160.10(2)(a) (see CPL 1.20[37];  People v. Robinson, 117 A.D.3d 1099, 984 N.Y.S.2d 479;  People v. Mitchell, 59 A.D.3d 739, 874 N.Y.S.2d 226;  People v. Nadal, 57 A.D.3d 574, 868 N.Y.S.2d 719).  Since the defendant's conviction of a greater count is deemed a dismissal of a lesser count pursuant to CPL 300.40(3)(b), we vacate the defendant's conviction of assault in the second degree and the sentence imposed thereon.

The defendant's contention that his waiver of the right to a jury trial was not knowing, voluntary, and intelligent is unpreserved for appellate review (see CPL 470.05[2];  People v. Johnson, 51 N.Y.2d 986, 435 N.Y.S.2d 713, 416 N.E.2d 1048;  People v. Tucker, 151 A.D.3d 1085, 58 N.Y.S.3d 461;  People v. Williams, 149 A.D.3d 986, 50 N.Y.S.3d 305).  In any event, the record does not support the defendant's contention that the waiver was invalid.  The defendant executed a written waiver in open court after allocution by the Supreme Court, the court approved the waiver, and the circumstances surrounding the waiver support the court's determination that the waiver was made knowingly, voluntarily, and intelligently (see People v. Pazmini, 132 A.D.3d 1015, 18 N.Y.S.3d 359;  People v. Fani, 59 A.D.3d 460, 872 N.Y.S.2d 535).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

AUSTIN, J.P., ROMAN, DUFFY and CHRISTOPHER, JJ., concur.