        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
461/10
KA 09-01460
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NADIRAH BROWN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered August 6, 2008. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree and
endangering the welfare of a child. The judgment was affirmed by
order of this Court entered April 30, 2010 in a memorandum decision
(72 AD3d 1558), and defendant on September 10, 2010 was granted leave
to appeal to the Court of Appeals from the order of this Court (15
NY3d 850), and the Court of Appeals on October 13, 2011 modified the
order and remitted the case to this Court for further proceedings in
accordance with the memorandum (17 NY3d 863).

     Now, upon remittitur from the Court of Appeals and having
considered the issues raised but not determined on the appeal to this
Court,

     It is hereby ORDERED that, upon remittitur from the Court of
Appeals, the judgment so appealed from is unanimously affirmed.

     Memorandum: In People v Brown (72 AD3d 1558), we previously
affirmed the judgment convicting defendant following a bench trial of,
inter alia, assault in the second degree (Penal Law § 120.05 [4]),
i.e., reckless assault. We rejected defendant’s contention that the
evidence was legally insufficient to establish that she acted
recklessly (Brown, 72 AD3d 1558), but the Court of Appeals determined
that the evidence was legally insufficient with respect thereto and
thus modified our order by reducing the assault conviction to assault
in the third degree (§ 120.00 [3]), i.e., criminally negligent
assault. The Court of Appeals remitted the case to this Court for
consideration of defendant’s further contention that the verdict with
respect to the assault count was against the weight of the evidence
(Brown, 17 NY3d 863, 865-866).

     Upon remittitur, and viewing the evidence in light of the
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elements of the crime in this bench trial (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict with respect to assault,
as modified by the Court of Appeals, is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). The
evidence includes the testimony of the victim and his sister, who
testified that defendant had placed a pot of water on the stove to
“boil some eggs.” They also testified that defendant later took the
pot of water off the stove and poured it onto the victim, causing
steam to rise from his shirt and scalding one of his arms, and his
chest and back. The medical expert testimony establishes that the
victim suffered first and second degree burns over approximately 15%
of his body. Although defendant gave a slightly different version of
the facts and thus “an acquittal would not have been unreasonable”
(Danielson, 9 NY3d at 348), we conclude that, “[b]ased on the weight
of the credible evidence,” defendant is guilty of criminally negligent
assault beyond a reasonable doubt (id.; see People v Romero, 7 NY3d
633, 642-644).




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
