People v Metwally (Osama)

[*1] People v Metwally (Osama) 2008 NY Slip Op 52195(U) [21 Misc 3d 134(A)] [21 Misc 3d 134(A)] Decided on October 30, 2008 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-1312 Q CR.

The People of the State of New York, Respondent,

against

Osama Metwally, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph A. Zayas, J.), rendered November 7, 2005. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree and harassment in the second degree.

Judgment of conviction affirmed.

Defendant was convicted of attempted assault in the third degree (Penal Law §§ 110.00, 120.00) and harassment in the second degree (Penal Law § 240.26 [1]) in connection with an altercation with his wife, who was not a witness at his trial.

In the exercise of our factual review power, we find that defendant's convictions of attempted assault in the third degree and harassment in the second degree were not
against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 349 [2007]; People v Romero, 7 NY3d 633, 644 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence included a 911 tape recording of an excited utterance of defendant's wife, who stated, among other things, that defendant had beaten her up and had hit her in the face and ear, and the testimony of defendant, who admitted that his wife had made three visits to a hospital in Manhattan for her hearing. Although defendant testified that he only had innocent physical contact with his wife as he tried to get by her and leave the premises, defendant's testimony was properly rejected. His credibility was undermined on cross-examination when it was brought out that he had a prior felony conviction in an incident involving dishonesty. Under the circumstances, the trier of fact could have properly chosen to credit the proof adduced by the [*2]People, particularly on the issue of whether defendant had the requisite intent to inflict a "physical injury," which is defined as an impairment of a physical condition or substantial pain, required for a conviction of attempted assault in the third degree (see Penal Law § 10.00 [9]; §§ 110.00, 120.00).

It is well settled that the credibility of witnesses poses questions of fact, and the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, is primarily for the trier of fact, which had the opportunity to "view the witnesses, hear the testimony and observe demeanor" (People v Romero, 7 NY3d 633, 644 [2006], supra). The determination of the trier of fact will be accorded great weight
on appeal and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86, 88 [1974]). The record before us amply supports the trial court's determination.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 30, 2008