People v. Avila

• Citation: 2014 N.Y. Slip Op. 03851,117 A.D.3d 1071,986 N.Y.S.2d 341
• Parties: The PEOPLE, etc., respondent, v. Fernando AVILA, appellant.
• Decision Date: 28 May 2014
• Court: New York Supreme Court Appellate Division

117 A.D.3d 1071

986 N.Y.S.2d 341

2014 N.Y. Slip Op. 03851

The PEOPLE, etc., respondent,

v.Fernando AVILA, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 28, 2014.

Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered November 16, 2012, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the verdict was against the weight of the evidence because the People failed to prove the requisite intent to cause physical injury by means of a deadly weapon or a dangerous instrument ( see Penal Law § 120.05[2] ), and because the testimony of the complainant was not credible. In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053,People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we find that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;Matter of Tatiana N., 73 A.D.3d 186, 899 N.Y.S.2d 21;cf. People v. Smith, 87 A.D.3d 1169, 930 N.Y.S.2d 234).

DICKERSON, J.P., LEVENTHAL, HALL and LOTT, JJ., concur.