People v Smith (Keith)

[*1] People v Smith (Keith) 2020 NY Slip Op 51211(U) Decided on October 21, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Cooper, Higgitt, JJ.
19-220

The People of the State of New York, Respondent, - -

against

Keith Smith, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Beth Beller, J.), rendered November 2, 2018, after a nonjury trial, convicting him of attempted assault in the third degree, menacing in the third degree, attempted criminal possession of a weapon in the fourth degree and attempted criminal mischief, and imposing sentence.

Per Curiam.

Judgment of conviction (Beth Beller, J.), rendered November 2, 2018, affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of attempted assault in the third degree (see Penal Law §§ 110.00, 120.00[1]) beyond a reasonable doubt. The evidence warranted the conclusion that defendant went beyond the category of "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives" (Matter of Philip A., 49 NY2d 198, 200, [1980]), when he grabbed complainant, the mother of his child, threw her into a window, causing her to strike her face and suffer a "hole" in her lip and a "bruise" on her thigh (see People v Stephenson, 36 AD3d 560, 561 [2007], lv denied 9 NY3d 851 [2007]). Nor was the verdict against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis upon which to disturb the trial court's determinations concerning credibility, including its rejection of complainant's alleged motivation to fabricate portions of her testimony.

The court properly exercised its discretion in admitting evidence of defendant's prior act of domestic violence against the victim. This evidence was relevant to defendant's anger and motive to control her (see People v Frankline, 27 NY3d 1113, 1115 [2016]; People v Dorm, 12 NY3d 16, 19 [2009]; People v Pagan, 154 AD3d 449 [2017], lv denied 30 NY3d 1062 [2017]) and probative of defendant's intent and motive to cause physical injury and to menace complainant (see People v Leonard, 29 NY3d 1, 7-8 [2017]; People v Williams, 160 AD3d 665, 666 [2018]). Any prejudicial effect was outweighed by probative value, and, in any event, the court at this nonjury trial is "presumed capable of disregarding the prejudicial aspect of the evidence" (People v Tong Khuu, 293 AD2d 424, 425 [2002], lv denied 98 NY2d 714 [2002]). In [*2]any event, even assuming that the trial court erred in admitting the challenged evidence, any error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230, 241—242 [1975]), which included photographs of the complainant's injuries. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 21, 2020