The People, etc., respondent, v. Fernando Avila, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Fernando Avila, appellant.

2012–10862 (Ind.No. 1005/12)

    Decided: May 28, 2014

THOMAS A. DICKERSON, J.P. JOHN M. LEVENTHAL L. PRISCILLA HALL PLUMMER E. LOTT, JJ.Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.

Submitted—March 31, 2014


Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered November 16, 2012, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the verdict was against the weight of the evidence because the People failed to prove the requisite intent to cause physical injury by means of a deadly weapon or a dangerous instrument (see Penal Law § 120.05[2] ), and because the testimony of the complainant was not credible.   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, 348), we accord great deference to the jury'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, 495).   Upon reviewing the record here, we find that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633;  Matter of Tatiana N., 73 AD3d 186;  cf.  People v. Smith, 87 AD3d 1169).



Aprilanne Agostino

Clerk of the Court

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