           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1241
KA 09-00166
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

LUCIANO ORTIZ, DEFENDANT-APPELLANT.


MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered November 28, 2007. The judgment convicted
defendant, upon a nonjury verdict, of assault 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
upon a nonjury verdict of assault in the second degree (Penal Law §
120.05 [former (3)]). Defendant failed to preserve for our review his
challenge to the legal sufficiency of the evidence inasmuch as he made
only a general motion for a trial order of dismissal (see People v
Gray, 86 NY2d 10, 19). In addition, 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 the verdict is not
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495). We also conclude that the sentence is not unduly
harsh or severe.




Entered:   November 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
