People v Colon (Luis)

[*1] People v Colon (Luis) 2017 NY Slip Op 50095(U) Decided on January 27, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570587/12

The People of the State of New York, Respondent,

against

Luis Colon, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered April 23, 2012, after a jury trial, convicting him of assault in the third degree and unlawful imprisonment in the second degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered April 23, 2012, affirmed.

The verdict convicting defendant of assault in the third-degree (see Penal Law § 120.00[1]) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Issues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations. The physical injury and intent elements of the assault charge were established by evidence that defendant hit the victim on the face, pulled her down on a bed, which defendant had moved to block the door to prevent the victim from leaving, jumped on top of the victim, stripped her of her pants and underwear, and choked her by the neck as she attempted to yell for help, causing bruises on the victim's face and neck, and scratches on her chest, which felt "pretty painful" and like she was "dying" (see People v Mullings, 105 AD3d 407 [2013], lv denied 21 NY3d 945 [2013]; Matter of Edward H., 61 AD3d 473 [2009]; People v Flores, 132 AD3d 519 [2015], lv denied 26 NY3d 1088 [2015]; People v Cherkasky, 53 Misc 3d 144[A], 2016 NY Slip Op 51574[U][App Term, 1st Dept 2016]).

Defendant's argument that the unlawful imprisonment charge merged with the assault charge is unpreserved (see People v Hanley, 20 NY3d 601, 606 [2013]), and we decline to review it in the interest of justice.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur concur
Decision Date: January 27, 2017