People v. Mateo

• Decision Date: 01 October 2010
• Citation: 909 N.Y.S.2d 266,77 A.D.3d 1374
• Parties: The PEOPLE of the State of New York, Respondent, v. Damian J. MATEO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 266

77 A.D.3d 1374

The PEOPLE of the State of New York, Respondent,

v.Damian J. MATEO, Defendant-Appellant.

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

Oct. 1, 2010.

John E. Tyo, Shortsville, for Defendant-Appellant.

R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.

PRESENT: MARTOCHE, J.P., CARNI, GREEN, PINE, AND GORSKI, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the first degree (Penal Law § 120.10[1] ). The evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932) is legally sufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). As defendant correctly concedes, the People presented legally sufficient evidence establishing that his pit bull terrier constituted a dangerous instrument within the meaning of Penal Law § 10.00(13) ( see People v. Garraway, 187 A.D.2d 761, 761-762, 589 N.Y.S.2d 942, lv. denied 81 N.Y.2d 886, 597 N.Y.S.2d 947, 613 N.E.2d 979), and that the pit bull caused the victim to sustain serious physical injury, here, "serious and protracted disfigurement," within the meaning of Penal Law § 10.00(10) ( see People v. Whyte, 47 A.D.3d 852, 853-854, 850 N.Y.S.2d 184; People v. Walos, 229 A.D.2d 953, 645 N.Y.S.2d 695). Defendant contends, however, that the evidence is legally insufficient to establish that he intended to cause such injury. We reject that contention ( see People v. Truesdale, 186 A.D.2d 496, 589 N.Y.S.2d 322, lv. denied 81 N.Y.2d 766, 594 N.Y.S.2d 729, 610 N.E.2d 402). In addition, viewing the evidence in light of the elements of the crime of assault as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). "Where, as here, witness credibilityis of paramount importance to the determination of guilt or innocence, [we] must give '[g]reat deference ... [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor' " ( People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679, quoting Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We see no reason to disturb the jury's determination to credit the testimony of the victim in this case ( see People v. Flagg, 59 A.D.3d 1003, 872 N.Y.S.2d 356, lv. denied 12 N.Y.3d 853, 881 N.Y.S.2d 665, 909 N.E.2d 588). Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is...