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

283
KA 10-01962
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

ETHAN MILLER, DEFENDANT-APPELLANT.


TERRENCE BAXTER, BATH, FOR DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR RESPONDENT.


     Appeal from a judgment of the Steuben   County Court (Joseph W.
Latham, J.), rendered April 28, 2010. The    judgment convicted
defendant, upon a jury verdict, of assault   in the second degree (two
counts) and falsifying business records in   the first degree (two
counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, two counts of assault in the
second degree (Penal Law § 120.05 [2], [9]). Viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), and affording the appropriate deference
to the jury’s credibility determinations (see People v Hill, 74 AD3d
1782, 1782-1783, lv denied 15 NY3d 805), we reject defendant’s
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). Contrary to
defendant’s contention, scalding hot water constitutes a “dangerous
instrument” (§ 120.05 [2]; see People v Mableton, 17 AD3d 383, 383, lv
denied 4 NY3d 888; People v Cruz, 257 AD2d 664; People v Holden, 188
AD2d 757, 760, lv denied 81 NY2d 887), and the People were not
required to establish the precise temperature of the water or the
length of exposure that caused second degree immersion burns to the
feet and ankles of the child victim.

     Defendant further contends that County Court violated his
constitutional right to present a defense when it precluded him from
offering hearsay testimony regarding the fact that children of the
victim’s mother were previously removed from her custody and placed in
foster care (see generally Chambers v Mississippi, 410 US 284, 302).
That contention is not preserved for our review (see People v
Gonzalez, 54 NY2d 729, 730; People v Simmons, 283 AD2d 306, 306, lv
denied 96 NY2d 924) and, in any event, it is without merit inasmuch as
                                 -2-                           283
                                                         KA 10-01962

defendant made no effort to establish such fact by a means other than
inadmissible hearsay.




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
