People v. Palant

• Decision Date: 09 October 2019
• Docket Number: Ind.No. 522/16,2018–04289
• Citation: 176 A.D.3d 872,111 N.Y.S.3d 361
• Parties: The PEOPLE, etc., Respondent, v. Jacob PALANT, Appellant.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 872
111 N.Y.S.3d 361

The PEOPLE, etc., Respondent,
v.
Jacob PALANT, Appellant.

2018–04289
Ind.No. 522/16

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

Argued—April 15, 2019
October 9, 2019

111 N.Y.S.3d 362

Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, N.Y. (Donna Aldea of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and John B. Latella of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

176 A.D.3d 872

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J. Berkowitz, J.), rendered March 26, 2018, convicting him of reckless endangerment in the first degree (two counts), assault in the first degree, assault in the second degree, and criminal mischief

111 N.Y.S.3d 363

in the fourth degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the facts, by reducing the convictions of assault in the first degree and assault in the second degree to a conviction of assault in the third degree, and vacating the sentences imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for sentencing on the conviction of assault in the third degree.

In the afternoon of December 26, 2015, the defendant and a codefendant, Andrew Denton, threw bricks from a pedestrian overpass into traffic on the Meadowbrook Parkway. After leaving the overpass and eating dinner, the defendant and the codefendant

176 A.D.3d 873

returned to the overpass and threw more bricks into traffic. During this second round, three vehicles traveling on the Meadowbrook Parkway sustained damages. A passenger (hereinafter the victim) in one of the vehicles sustained injuries when a brick struck the windshield, causing the windshield to shatter and glass to enter her left eye. After a jury trial, the defendant was convicted of two counts of reckless endangerment in the first degree, one count of assault in the first degree, one count of assault in the second degree, and three counts of criminal mischief in the fourth degree.

"Upon [a] defendant's request, the Appellate Division must conduct a weight of the evidence review" and, thus, "a defendant will be given one appellate review of adverse factual findings" ( People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). "[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt" ( id. at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). The court "act[s], in effect, as a second jury by rendering its own determination of the facts as proved at trial" ( People v. Kancharla , 23 N.Y.3d 294, 302–303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [citation omitted]; see People v. Delamota , 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; People v. Romero , 7 N.Y.3d 633, 644 n 2, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). If it appears that the factfinder failed to give the evidence the weight it should be accorded, then this Court may set aside the verdict and dismiss the accusatory instrument or any reversed count (see CPL 470.20[5] ; People v. Romero , 7 N.Y.3d at 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ).

The defendant contends, inter alia, that his convictions of assault in the first degree under Penal Law § 120.10(3) and assault in the...