People v. Mack

• Decision Date: 24 August 2010
• Citation: 905 N.Y.S.2d 907,76 A.D.3d 467
• Parties: The PEOPLE of the State of New York, Ind. C/ Respondent, v. Allen MACK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 907 76 A.D.3d 467 The PEOPLE of the State of New York, Ind. C/ Respondent, v. Allen MACK, Defendant-Appellant. Supreme Court, Appellate Division, First Department, New York. Aug. 24, 2010.

Steven Banks, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.

Upon remittitur from the Court of Appeals (15 N.Y.3d 213, --- N.Y.S.2d ----, --- N.E.2d ---- [2010] ) for consideration of the facts and issues raised on the appeal but not yet determined, judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered August 16, 2006, convicting defendant, after a nonjury trial, of attempted assault in the third degree and harassment in the second degree, and sentencing him to an aggregate term of 90 days, unanimously affirmed.

Defendant did not preserve his challenges to the legal sufficiency of the evidence and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. We further find that the verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the court's determinations concerning credibility. With respect to the harassment conviction, defendant's course of conduct supports the inference that he struckthe victim with requisite intent to "harass, annoy or alarm" (Penal Law § 240.26).

ANDRIAS, J.P., SWEENY, McGUIRE, DeGRASSE, JJ., concur.