

People v McElroy (2016 NY Slip Op 03898)





People v McElroy


2016 NY Slip Op 03898


Decided on May 18, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 18, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
THOMAS A. DICKERSON
FRANCESCA E. CONNOLLY, JJ.


2015-00489
 (Ind. No. 55/13)

[*1]The People of the State of New York, respondent, 
vAndrew McElroy, appellant.


Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Slevin of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered February 20, 2014, convicting him of assault in the third degree, upon a jury verdict, as reduced by an order of the same court, also dated February 20, 2014, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contentions that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt and to support his conviction of assault in the third degree are unpreserved for appellate review, as he did not raise the specific grounds that he now raises on appeal on his motion for a trial order of dismissal made after the close of the evidence (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 491-492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt and establish the defendant's guilt of assault in the third degree. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record, we are satisfied that the rejection of the justification defense and the verdict of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d 633).
In light of our determination on a related appeal by the People (see People v McElroy, _____ AD3d _____ [Appellate Division Docket No. 2014-02764; decided herewith]), the defendant's remaining contention is academic.
MASTRO, J.P., CHAMBERS, DICKERSON and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


