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

461
KA 12-01741
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRIANNA M. MASSEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (M. William
Boller, A.J.), rendered June 11, 2012. The judgment convicted
defendant, upon a nonjury verdict, of assault in the first degree.

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

     Memorandum: Defendant was convicted following a nonjury trial of
assault in the first degree (Penal Law § 120.10 [1]) for cutting
another woman in the face and arm with a razor blade during a physical
altercation. Defendant contends that the evidence of her intent to
commit the crime is legally insufficient to support the conviction and
that the verdict is against the weight of the evidence. Defendant
failed to preserve for our review her contention concerning the legal
sufficiency of the evidence by failing to renew her motion for a trial
order of dismissal after presenting evidence (see People v Goley, 113
AD3d 1083, 1083; People v Heary, 104 AD3d 1208, 1209, lv denied 21
NY3d 943, reconsideration denied 21 NY3d 1016). In any event, we
conclude that the verdict is supported by legally sufficient evidence
(see generally People v Bleakley, 69 NY2d 490, 495), and, viewing the
evidence in light of the elements of the crime in this nonjury trial
(see People v Danielson, 9 NY3d 342, 349), we further conclude that
the verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). With respect to the element of intent,
defendant admitted in her testimony that she caused the victim’s
injuries by slashing at her with a razor blade, and she “ ‘may be
presumed to intend the natural and probable consequences of [her]
actions’ ” (People v Boley, 126 AD3d 1389, 1390, lv denied 25 NY3d
1159; see People v Mahoney, 6 AD3d 1104, 1104, lv denied 3 NY3d 660).

     We reject defendant’s contention that County Court erred in
discrediting her justification defense. There was no evidence that
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                                                         KA 12-01741

the victim was armed or was attempting to use deadly physical force
against defendant when defendant used the razor blade. Additionally,
the testimony of the victim and other witnesses suggested that
defendant had the opportunity to retreat, and failed to do so, making
a justification defense inapplicable under the circumstances herein
(see Penal Law § 35.15 [2] [a]; People v Robinson, 1 AD3d 1022, 1023,
lv denied 1 NY3d 633). Although defendant provided contradictory
testimony, based upon our independent review of the evidence pursuant
to CPL 470.15 (5) and giving “[g]reat deference . . . to the fact-
finder’s opportunity to view the witnesses, hear the testimony and
observe demeanor” (Robinson, 1 AD3d at 1023 [internal quotation marks
omitted]), we conclude that the court’s rejection of the justification
defense was not contrary to the weight of the evidence. The sentence
is not unduly harsh or severe.




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
