People v. Nery

Oct 14, 1997
Versions:243 A.D.2d 585
665 N.Y.S.2d 301
1997 N.Y. App. Div. LEXIS 9770

Appeal by the de*586fendant from a judgment of the Supreme Court, Queens County (Roman, J.), rendered October 11, 1995, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant did not preserve for appellate review his claims that the justification defense was not disproven beyond a reasonable doubt and that the complainant’s testimony was incredible as a matter of law (see, CPL 470.05 [2]; People v Torres, 219 AD2d 565; People v Reeder, 209 AD2d 551). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to disprove the defense of justification beyond a reasonable doubt. The evidence was also sufficient to support the jury’s finding that the defendant intended to inflict, and that the complainant sustained, serious physical injury (see, Penal Law § 10.00 [10]; People v Wright, 221 AD2d 577; People v Williams, 96 AD2d 740). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant failed to preserve for appellate review his objection to the court’s instructions to the jury concerning the defense of justification, and, in any event, the contention is without merit. Rosenblatt, J. P., Copertino, Krausman and Goldstein, JJ., concur.