People v. Flagg

Feb 6, 2009
Versions:59 A.D.3d 1003
872 N.Y.S.2d 356

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him as a juvenile offender upon a jury verdict of assault in the first degree (Penal Law § 120.10 [1]). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). “Where, as here, witness credibility is 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 AD3d 966, 967 [2005], lv denied 4 NY3d 831 [2005], quoting Bleakley, 69 NY2d at 495). It was for the jury to determine whether to credit the victim‘s testimony, and we see no reason to disturb the jury‘s credibility determination (see id.). The sentence is not unduly harsh or severe. We note, however, that the certificate of conviction incorrectly reflects that defendant was sentenced to an indeterminate term of incarceration of 3½ to 10 years, and it must therefore be amended to reflect that he was sentenced to an indeterminate term of incarceration of 3⅓ to 10 years (see generally People v Saxton, 32 AD3d 1286 [2006]).

Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.