PEOPLE v. HUNT

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The PEOPLE of the State of New York, Respondent, v. Brian HUNT, Defendant–Appellant.

Decided: January 26, 2016

FRIEDMAN, J.P., RENWICK, SAXE, MOSKOWITZ, JJ. Seymour W. James, Jr., The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered April 27, 2011, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of 21/212 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 [2007] ). There is no reason to disturb the jury's credibility determinations. The evidence established that at least two men, one of whom was defendant, attacked the victim. The evidence also supports findings that defendant was the assailant who stomped on the fallen victim's eye, causing multiple fractures to his eye socket by means of defendant's sneaker, which qualified as a dangerous instrument under the circumstances (see People v. Carter, 53 N.Y.2d 113, 116 [1981]; People v. Lev, 33 AD3d 362 [1st Dept 2006] ). The jury's factually mixed verdict does not undermine the sufficiency of the evidence (see People v. Abraham, 22 NY3d 140, 146–147 [2013] ), and while we may consider it in performing our weight of the evidence review (see People v. Rayam, 94 N.Y.2d 557, 563 n [2000] ), we find it “imprudent to speculate concerning the factual determinations that underlay the verdict” (People v. Horne, 97 N.Y.2d 404, 413 [2002]; see also People v. Hemmings, 2 NY3d 1, 5 n [2004] ).