People v. Dancy

• Decision Date: 04 August 2011
• Citation: 87 A.D.3d 759,2011 N.Y. Slip Op. 06149,928 N.Y.S.2d 143
• Parties: The PEOPLE of the State of New York, Respondent,v.Melville DANCY, Appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 759
928 N.Y.S.2d 143
2011 N.Y. Slip Op. 06149

The PEOPLE of the State of New York, Respondent,
v.
Melville DANCY, Appellant.

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

Aug. 4, 2011.

[928 N.Y.S.2d 144]

Lance N. Salisbury, Ithaca, for appellant.Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.Before: MERCURE, J.P., PETERS, MALONE JR., KAVANAGH and STEIN, JJ.MALONE JR., J.

[87 A.D.3d 759] Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered December 22, 2008, upon a verdict convicting defendant of the crime of assault in the second degree.

In March 2007, while incarcerated at a correctional facility, defendant engaged in a physical altercation involving several correction officers as a result of which two of the correction officers[87 A.D.3d 760] sustained physical injuries. As a result, defendant was charged in an indictment with three counts of assault in the second degree. Following a jury trial, defendant was convicted of the count alleging that, with the intent to prevent Correction Officer Joseph Christofaro from performing a lawful duty, defendant caused him physical injury ( see Penal Law § 120.05[3] ). Defendant was acquitted of the remaining counts alleging that, with the intent to cause physical injury, he caused said injury to Christofaro and another correction officer, Robert Bennett ( see Penal Law § 120.05[7] ). Defendant was sentenced as a second violent felony offender to five years in prison with five years of postrelease supervision. This sentence was to run consecutive to defendant's underlying prison term. He now appeals.

Defendant initially contends that the evidence was legally insufficient to support the verdict. Although defendant did appropriately move to dismiss on that basis with sufficient specificity at the close of the People's case, he did not renew that motion following the presentation of his own case. Accordingly, this challenge is not preserved for our review ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ). This circumstance is of little import, however, inasmuch as defendant also claims that the verdict is against the weight of the evidence, which necessitates an evaluation by this Court as to whether the elements of the crimes charged were sufficiently proven at trial ( see People v. Phelan, 82 A.D.3d 1279, 1281 n., 918 N.Y.S.2d 608 [2011] ). In conducting that review here, inasmuch as it would not have been unreasonable for the jury to have reached a different verdict, this Court “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ...