People v Cephas

People v Cephas 2013 NY Slip Op 04351 Decided on June 12, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 12, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2008-09683
(Ind. No. 07-01764)

[*1]The People of the State of New York, respondent,

v

Shawn Cephas, also known as Sean Cephas, appellant.




Mark Diamond, New York, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer
Spencer, Steven A. Bender, and
Richard Longworth Hecht of
counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered October 1, 2008, convicting him of assault in the second degree and menacing in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

At trial, the People presented evidence that the defendant physically attacked the complainant by punching her, kicking her, choking her, dragging her, and slamming her head and face against a parked vehicle. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). Contrary to the defendant's contention, the evidence was sufficient to establish that the defendant caused injury to the complainant by means of a dangerous instrument, namely, the vehicle (see Penal Law §§ 10.00[13]; 120.05[2]; People v Galvin, 65 NY2d 761, 762-763; People v Carter, 53 NY2d 113, 116; People v Warren, 98 AD3d 634, 636).

The trial court did not err in refusing to give a missing witness charge with respect to a witness whose testimony would have constituted hearsay (see People v Keen, 94 NY2d 533, 539; People v Watson, 220 AD2d 333; People v Small, 201 AD2d 315, 316).

The defendant's remaining contentions are without merit.
BALKIN, J.P., LEVENTHAL, LOTT and SGROI, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court