        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1165
KA 14-00059
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY A. CARTER, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.
LOWRY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered November 20, 2013. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of assault in the second degree (Penal Law § 120.05 [2]),
defendant contends that the conviction is not supported by legally
sufficient evidence and that the verdict is against the weight of the
evidence with respect to the issues of intent to cause physical injury
and justification.

      Viewing the evidence in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), we conclude that the evidence
that defendant stabbed the victim in the face and leg is legally
sufficient to establish that defendant intended to cause physical
injury (see generally People v Bleakley, 69 NY2d 490, 495). To the
extent that defendant contends that the evidence is legally
insufficient to support the conviction because the People failed to
disprove the defense of justification beyond a reasonable doubt, we
conclude that such contention is unpreserved for our review inasmuch
as defendant failed to move for a trial order of dismissal on that
ground (see People v Fafone, 129 AD3d 1667, 1668, lv denied 26 NY3d
1039). In any event, the evidence is legally sufficient to disprove
defendant’s justification defense (see generally Bleakley, 69 NY2d at
495).

     We further conclude that, viewing the evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). Even assuming,
                                 -2-                             1165
                                                            KA 14-00059

arguendo, that a different verdict would not have been unreasonable,
we note that “ ‘the jury was in the best position to assess the
credibility of the witnesses and, on this record, it cannot be said
that the jury failed to give the evidence the weight it should be
accorded’ ” (People v Chelley, 121 AD3d 1505, 1506, lv denied 24 NY3d
1218, reconsideration denied 25 NY3d 1070).

     Finally, the sentence is not unduly harsh or severe.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
