*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 554

KA 10-00184

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER CHRISTIAN KENDRA, ALSO KNOWN AS KENDRA CHRISTIAN,

DEFENDANT-APPELLANT.

DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DOUGLAS A. GOERSS OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered December 8, 2009. The judgment convicted defendant, after a nonjury trial, of assault in the second degree (two counts) and endangering the welfare of a child.

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

Memorandum: Defendant appeals from a judgment convicting her following a nonjury trial of two counts of assault in the second degree (Penal Law § 120.05 [2], [9]) and one count of endangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for our review her contention that the conviction is not supported by legally sufficient evidence ( see People v Gray , 86 NY2d 10, 19). Furthermore, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v Danielson , 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495).

Defendant correctly concedes that she failed to preserve for our review her contention that the conviction of endangering the welfare of a child is barred by the merger doctrine ( see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]; People v Smith , 262 AD2d 1063, lv denied 93 NY2d 1027).

Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court