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

150
KA 12-00343
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRELL FORD, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered January 31, 2012. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree and
harassment in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of assault in the second degree (Penal Law §
120.05 [1]) and harassment in the second degree (§ 240.26 [1]). With
respect to the assault conviction, defendant contends that the
evidence is legally insufficient to establish that he intended to
cause serious physical injury to one of the victims. We reject that
contention. “ ‘A defendant may be presumed to intend the natural and
probable consequences of his [or her] actions . . . , and [i]ntent may
be inferred from the totality of conduct of the accused’ ” (People v
Moreland, 103 AD3d 1275, 1276, lv denied 21 NY3d 945; see People v
Meacham, 84 AD3d 1713, 1714, lv denied 17 NY3d 808). Here, several
witnesses testified that defendant attacked the victim from behind and
punched him in the face at least twice with a closed fist. During the
altercation, defendant, who was approximately six feet five inches
tall, weighed about 300 or 320 pounds, and was considerably larger
than the victim, placed the victim in a headlock, and then struck the
victim in the face at least once while the victim was thus
immobilized. We conclude that one natural and probable consequence of
striking someone under such circumstances is that the person will
sustain a serious physical injury (see Meacham, 84 AD3d at 1714).
Defendant also challenges the legal sufficiency of the evidence on the
issue whether the victim sustained a serious physical injury within
the meaning of Penal Law §§ 120.05 (1) and 10.00 (10). The People
presented evidence establishing that the victim sustained two
                                 -2-                           150
                                                         KA 12-00343

fractures to his jaw, which required surgery and the permanent
placement of a titanium plate in his chin. The victim’s jaw was wired
shut for four weeks, and the victim experienced numbness in his chin
that continued until the time of trial. Consequently, we conclude
that the evidence of serious physical injury is legally sufficient to
support the conviction of assault (see People v Santiago, 111 AD3d
1383, 1384-1385; People v Johnson, 50 AD3d 1537, 1537-1538, lv denied
10 NY3d 935; see also Matter of Tirell R., 33 AD3d 804, 805).

     Viewing the evidence in light of the elements of the crime and
the violation in this nonjury trial (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contention that the court
failed to give the evidence the weight it should be accorded when it
determined that he intended to cause serious physical injury (see
generally People v Bleakley, 69 NY2d 490, 495), and when it rejected
his justification defense (see People v Moreno, 31 AD3d 1214, 1214, lv
denied 7 NY3d 869). “It is well settled that credibility
determinations by the court . . . are entitled to great deference
. . . , and minor inconsistencies in the testimony of certain
prosecution witnesses do not render their testimony incredible as a
matter of law” (People v Howard, 101 AD3d 1749, 1750, lv denied 21
NY3d 944 [internal quotation marks omitted]).




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
