People v Butler (Oziemae)

[*1] People v Butler (Oziemae) 2003 NY Slip Op 51612(U) Decided on December 12, 2003 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the Official Reports.

Decided on December 12, 2003
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2001-546 K CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

OZIEMAE BUTLER, Appellant.

Appeal by defendant from a judgment of the Criminal Court, Kings County (J. Gubbay, J.), rendered March 22, 2001, convicting her, after a nonjury trial, of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]), and imposing sentence.

Judgment of conviction unanimously affirmed.

Evidence is legally sufficient if "any rational trier of fact could have found the essential elements beyond a reasonable doubt" (Jackson v Virginia, 443 US 307, 319 [1979] [emphasis in original]). A person is guilty of (attempted) assault in the third degree when, "[w]ith intent to cause physical injury to another person, he causes such injury to such person" (Penal Law § 120.00 [1]). A person is guilty of harassment in the second degree when, "with intent to harass, annoy or alarm another person. . . he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26 [1]). We find, viewing the evidence in a light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), that the evidence adduced at trial could lead a rational trier of fact to determine, beyond a reasonable doubt, that the proof and burden requirements for every element of these offenses, including the element of intent, were met.

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). The credibility of witnesses is a question of fact, and the trier of the fact may choose to believe some, but not all, of a witness' testimony (see People v Dlugash, 41 NY2d 725, 736 [1977]). The resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is primarily to be decided by the trier of the fact, which had the opportunity to see and hear the witnesses (see People v Gaimari, 176 NY 84, 94 [1903]). The determination of the trier of the fact should be [*2]accorded great weight on appeal, and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86, 88 [1974]).
Decision Date: December 12, 2003