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

1219
KA 12-02217
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JACQUETTA B. SIMMONS, DEFENDANT-APPELLANT.


ANN M. NICHOLS, BUFFALO, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered November 14, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
modified as a matter of discretion in the interest of justice by
reducing the sentence to a definite term of imprisonment of one year
and as modified the judgment is affirmed and the matter is remitted to
Genesee County Court for proceedings pursuant to CPL 460.50 (5).

     Memorandum: On appeal from a judgment convicting her following a
jury trial of assault in the second degree (Penal Law § 120.05 [12]),
defendant contends that the verdict is against the weight of the
evidence. We reject that contention. “Viewing the evidence in a
neutral light and weighing the probative value of the conflicting
testimony and the conflicting inferences that could be drawn, while
deferring to the jurors’ ability to observe the witnesses and assess
their credibility, aided by the video recording, we find that it was
not contrary to the weight of the credible evidence for the jury to
find that defendant” intentionally punched the victim (People v
Purvis, 90 AD3d 1339, 1341, lv denied 18 NY3d 997; see e.g. People v
Woodring, 48 AD3d 1273, 1275, lv denied 10 NY3d 846; People v Gibbs,
34 AD3d 1120, 1121-1122; People v Thomas, 24 AD3d 1242, 1243, lv
denied 6 NY3d 819; see generally People v Bleakley, 69 NY2d 490, 495).

     We agree with defendant, however, that the sentence is unduly
harsh and severe under the circumstances of this case, and we
therefore modify the judgment by reducing the sentence as a matter of
discretion in the interest of justice to a definite term of
imprisonment of one year (see generally CPL 470.15 [6] [b]).

     We have reviewed defendant’s remaining contention and conclude
that it lacks merit.
                                 -2-                          1219
                                                         KA 12-02217

     All concur except SCONIERS, J., who dissents and votes to reverse
in accordance with the following Memorandum: I respectfully dissent
because, viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), in my
view the verdict convicting defendant of assault in the second degree
(Penal Law § 120.05 [12]) is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). I would therefore
reverse the judgment of conviction and dismiss the indictment. Where,
as here, a different finding from that reached by the jury would not
have been unreasonable, we must “ ‘weigh the relative probative force
of conflicting testimony and the relative strength of conflicting
inferences that may be drawn from the testimony’ ” (id.), and then we
must “decide[] whether the jury was justified in finding the defendant
guilty beyond a reasonable doubt” (Danielson, 9 NY3d at 348; see
People v Lamar, 83 AD3d 1546, 1546-1547). When considering all of the
evidence in the record, including the surveillance video, I conclude
that the credible evidence is more consistent with the testimony of
the defense witnesses that defendant’s arm was grabbed by someone who
was behind her and that she accidently struck the victim when she
aggressively pulled away from that person’s grasp.




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
