People v Graziosa (Rocco)

[*1] People v Graziosa (Rocco) 2005 NY Slip Op 51910(U) [10 Misc 3d 128(A)] Decided on November 21, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: NOVEMBER 21, 2005 SEPTEMBER 2004 TERM SUAREZ, P.J., McCOOE, GANGEL-JACOB, JJ.
NY County Clerk's No. 570405/03 Calendar No. 04-085

The People of the State of New York, Respondent,

against

Rocco Graziosa, Defendant-Appellant.

Defendant appeals from a judgment of Criminal Court, New York County (Robert M. Stolz, J.), rendered January l5, 2003 after a jury trial, convicting him of assault in the third degree (Penal Law § 120.00[1]), and imposing sentence.

PER CURIAM:

Judgment of conviction rendered January l5, 2003 (Robert M. Stolz, J.) affirmed.

Defendant's present challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see People v Gray, 86 NY2d 10 [1995]), and we decline to review it in the interest of justice. In any event, viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620 [1983]), the defendant's conduct in "lung[ing]" at the complainant, punching him in the face, and attempting to kick him as he lay prone on the ground, was legally sufficient to establish beyond a reasonable doubt that defendant assaulted the complainant without justification. To the extent that defendant's proported legal sufficiency argument — impugning the complainant's testimony as "inconsistent and highly unreliable" — is in reality a challenge to the conviction on weight of the evidence grounds, it is similarly lacking in merit. Issues of credibility were properly placed before the jury and we see no reason to disturb its determinations (see People v Gaimari, 176 NY 84,94 [1903]).

Also unpreserved are defendant's arguments relating to the introduction of demeanor evidence, and we decline to review them in the interest of justice. Were we to review these [*2]claims, we would find no evidentiary error. Testimony that defendant was smiling and appeared "happy" at the time of and after his arrest did not constitute impermissible comment on defendant's right to remain silent, but rather was an appropriate observation of the defendant's deportment that tended to contradict the central justification defense asserted by defendant at trial (see People v Bido, 235 AD2d 288, 289 [1997], lv denied 89 NY2d 1009 [1997]; People v Rosario, 298 AD2d 244, 245 [2002]. As Criminal Court correctly noted in its written decision denying defendant's CPL 330.30 motion (194 Misc 2d 799, 802):

"[D]efendant's laughter and smiling

was not simply indirect or speculative

proof of 'consciousness of guilt.'

Rather it was exactly what it appeared

to be — direct evidence that he . . .

regarded the events of the day as a

source of extreme amusement and reason

for celebration. Defendant's broad comic
demeanor clearly evinced his contemporaneous

intent. This was evidence the

jury was entitled to hear."

Finally, defendant's claims of misconduct by the prosecutor during summation are lacking in merit. The challenged comments were fair response to the defense summation and did not shift the burden of proof or deprive defendant of a fair trial see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro,
184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993].

This constitutes the decision and order of the court.
Decision Date: November 21, 2005