People v Smith

People v Smith 2010 NY Slip Op 09066 [79 AD3d 486] December 9, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

The People of the State of New York, Respondent,
v
Marcus Smith, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Ryan O. West of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Maureen L. Grosdidier of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Eileen Koretz, J.H.O. at nonjury trial; John P. Collins, J. at sentence), rendered September 24, 2009, convicting defendant of attempted assault in the in the third degree and harassment in the second degree, and sentencing him to a conditional discharge, unanimously affirmed.

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 credibility determinations. The testimony of the victim as credited by the court disproved defendant's justification defense beyond a reasonable doubt.

Defendant's challenge to the duration of his order of protection is unpreserved (see People v Nieves, 2 NY3d 310 [2004]) and we decline to review it in the interest of justice. Defendant should address his request for an amendment of the order to the court that issued it (see id. at 317-318). Concur—Gonzalez, P.J., Saxe, Catterson, Acosta and Manzanet-Daniels, JJ.