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

297
KA 12-02296
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MAHNSEAH T. BOLEY, DEFENDANT-APPELLANT.


PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered June 27, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the third degree (two
counts).

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed a sentence of incarceration is unanimously dismissed and
the judgment is otherwise affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of two counts of assault in the third degree (Penal Law §
120.00 [1]), defendant contends that one count of assault in the third
degree is against the weight of the evidence because he did not intend
to harm the victim, and the victim did not sustain a physical injury
within the meaning of Penal Law § 10.00 (9). Viewing the evidence in
light of the elements of that crime as charged to the jury, we reject
defendant’s contention (see People v Danielson, 9 NY3d 342, 349;
People v Bleakley, 69 NY2d 490, 495). The injured victim testified
that defendant forced open a bathroom door and thereby pushed her into
the window, which shattered. She further testified that defendant
punched her in the face repeatedly, and she sustained swelling and
bruising on her face, a black eye, a cut lip, and cuts on her knees
and back. She received medical treatment and testified that it took a
month for the bruising and swelling on her face to subside, that she
missed two days of work after the assault, and that she still has
scars on her back. The victim’s testimony was corroborated by
testimony of police officers and medical personnel, and photographs of
her injuries.

     “A defendant may be presumed to intend the natural and probable
consequences of his actions . . . , and [i]ntent may be inferred from
the totality of conduct of the accused” (People v Mahoney, 6 AD3d
1104, 1104, lv denied 3 NY3d 660 [internal quotation marks omitted]).
                                 -2-                           297
                                                         KA 12-02296

Defendant’s version of the events “involved credibility issues that
were resolved by the jury, and we accord great deference to the jury’s
credibility determinations” (People v Harris, 56 AD3d 1267, 1268, lv
denied 11 NY3d 925). With respect to the elements of intent and
physical injury, we conclude that it cannot be said that the jury
failed to give the evidence the weight it should be accorded (see
People v Spratley, 96 AD3d 1420, 1421, following remittal 103 AD3d
1211, lv denied 21 NY3d 1020; People v Cooper, 50 AD3d 1570, 1571, lv
denied 10 NY3d 957).

     We dismiss the appeal to the extent that defendant contends that
the sentence is harsh and excessive inasmuch as defendant has
completed serving his sentence and, thus, that part of the appeal is
moot (see People v Mackey, 79 AD3d 1680, 1681, lv denied 16 NY3d 860).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
