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

1155
KA 13-02110
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARDREQUEZ HAYNES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ANTHONY M. ROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered September 10, 2013. The judgment
convicted defendant, upon a nonjury verdict, of assault in the second
degree (two counts), criminal possession of a weapon in the third
degree and possession of burglar’s tools.

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

     Memorandum: On appeal from a judgment convicting him after a
nonjury trial of, inter alia, two counts of assault in the second
degree (Penal Law § 120.05 [2]), defendant contends that the evidence
is legally insufficient to support the assault convictions because the
People did not adequately prove the element of intent and failed to
disprove his defense of justification. By failing to move for a trial
order of dismissal “ ‘specifically directed’ ” at the purported legal
insufficiency of the evidence, however, defendant failed to preserve
that contention for our review (People v Hawkins, 11 NY3d 484, 492,
quoting People v Gray, 86 NY2d 10, 19).

     Defendant further contends that the verdict is against the weight
of the evidence only to the extent that the People failed to disprove
his justification defense beyond a reasonable doubt. We reject that
contention. The use of a “knife to inflict injury upon one’s victim
constitutes the use of deadly physical force” (People v Davis, 118
AD2d 206, 209, lv denied 68 NY2d 768; see People v Jones, 24 AD3d 815,
816, lv denied 6 NY3d 777), and the use of deadly physical force is
justifiable only when “[t]he actor reasonably believes that such other
person is using or about to use deadly physical force” (Penal Law §
35.15 [2] [a]). Although one of the victims had a pocket knife
secreted on his person, there is no dispute that neither victim
displayed a weapon or dangerous instrument before being cut by
                                 -2-                          1155
                                                         KA 13-02110

defendant with a knife, and the evidence at trial established that the
victims were not using or attempting to use deadly physical force
against defendant at the time. Thus, viewing the evidence in light of
the elements of the crime in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), we conclude that Supreme Court’s
rejection of the justification defense is not against the weight of
the evidence (see People v Goley, 113 AD3d 1083, 1084, citing People v
Romero, 7 NY3d 633, 643-644).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
