People v Mack

People v Mack 2010 NY Slip Op 06463 [76 AD3d 467] August 24, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 29, 2010

The People of the State of New York, Respondent,
v
Allen Mack, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.

Upon remittitur from the Court of Appeals (15 NY3d 213 [2010]) for consideration of the facts and issues raised on the appeal but not yet determined, judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered August 16, 2006, convicting defendant, after a nonjury trial, of attempted assault in the third degree and harassment in the second degree, and sentencing him to an aggregate term of 90 days, unanimously affirmed.

Defendant did not preserve his challenges to the legal sufficiency of the evidence and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's determinations concerning credibility. With respect to the harassment conviction, defendant's course of conduct supports the inference that he struck the victim with requisite intent to "harass, annoy or alarm" (Penal Law § 240.26). Concur—Andrias, J.P., Sweeny, McGuire and DeGrasse, JJ.