People v Gambetta

People v Gambetta 2006 NY Slip Op 07778 [33 AD3d 537] October 26, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

The People of the State of New York, Respondent,
v
Charles Gambetta, Appellant.

—[*1]Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered November 4, 2005, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of three years' probation, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). Defendant was properly convicted of reckless assault (Penal Law § 120.00 [2]). The evidence supported the conclusion that when defendant threw the victim onto the floor he acted recklessly but without a specific intent to cause physical injury (see e.g. People v Cameron, 123 AD2d 325 [1986]). Furthermore, the People disproved defendant's justification defense beyond a reasonable doubt.

Defendant's challenge to the court's justification charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find it to be without merit. The court's charge clearly informed the jury that the defense of justification applied to both counts of assault. Concur—Andrias, J.P., Gonzalez, Sweeny and Catterson, JJ.