People v Ziffer

[*1] People v Ziffer 2014 NY Slip Op 50809(U) Decided on May 9, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 9, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ.
2012-447 RO CR

The People of the State of New York, Respondent,

against

Moshe Ziffer, Appellant.

Appeal from a judgment of the Justice Court of the Town of Ramapo, Rockland County (David J. Stein, J.), rendered January 26, 2012. The judgment convicted defendant, after a nonjury trial, of assault in the third degree and sentenced him to a term of three years' probation, a $250 fine, and to pay restitution in the sum of $1,219.32.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was convicted of assault in the third degree (Penal Law § 120.00 [1]) in connection with an incident on September 3, 2010, in which defendant allegedly hit the victim on the forehead with a four-foot-wide dustpan. At trial, defendant claimed that his act was justified because the victim had attacked him.

Defendant's contentions that the People failed to prove his guilt of assault in the third degree, and disprove his justification defense beyond a reasonable doubt, are unpreserved for appellate review, as he did not raise these issues at trial (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Timmons, 54 AD3d 883, 885 [2008]; People v Accetta, 17 Misc 3d 126[A], 2007 NY Slip Op 51807[U]; [App Term, 9th & 10th Jud Dists 2007]). In any event, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), the evidence was legally sufficient to prove defendant's guilt of assault in the third degree (Penal Law § 120.00 [1]), and to disprove defendant's justification defense beyond a reasonable doubt (see Penal Law §§ 25.00, 35.00; People v Danielson, 9 NY3d 342, 349 [2007]; People v McManus, 67 NY2d 541, 546 [1986]; People v Curry, 85 AD3d 1209, 1212 [2011]).

The People disproved the "objective component" of the defense of justification beyond a reasonable doubt (Matter of Y.K., 87 NY2d 430, 434 [1996]; see Penal Law § 35.15 [1]; People v Goetz, 68 NY2d 96, 116 [1986]). A reasonable person would not have believed, under the circumstances of this case, that the use of physical force by the victim was imminent (see Matter of Y.K., 87 NY2d at 433; People v Albertorio, 31 Misc 3d 127[A], 2011 NY Slip Op 50443[U]; [App Term, 2d, 11th & 13th Jud Dists 2011]). Moreover, even if it was reasonable to believe that the use of physical force by the victim was imminent, under the circumstances, a reasonable person would not have believed that, to repel the attack, it was necessary to hit the victim in the head with a large dustpan with such disproportionate physical force that the dustpan broke, whereby the victim sustained a six-centimeter laceration to his forehead that required 12 stitches to close (see Matter of Y.K., 87 NY2d at 433; People v Terk, 24 AD3d 1038, 1039 [2005]; People v Mothon, 284 AD2d 568, 570 [2001]; cf. People v Jones, 148 AD2d 547, 548 [1989]). [*2]Thus, there was no reasonable view of the evidence whereby the factfinder could properly conclude that defendant's conduct was justified (see People v Petty, 7 NY3d 277, 284 [2006]).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d at 342), we accord great deference to the factfinder's opportunity at the trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the verdict of guilt, and the finding that defendant's conduct was not justified, were not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Defendant's intent to cause physical injury may be inferred from his actions and from the severity of the victim's injuries (see People v Terk, 24 AD3d at 1038). Any inconsistencies in the victim's testimony were not of such magnitude as to render it incredible or unreliable (see People v Scipio, 61 AD3d 899 [2009]; People v Almonte, 23 AD3d 392, 393 [2005]; People v Carboy, 37 Misc 3d 83, 85 [App Term, 9th & 10th Jud Dists 2012]). There is no basis to disturb the Justice Court's determination crediting the victim's testimony (see People v Smith, 79 AD3d 486, 487 [2010]; People v Sellers, 59 AD3d 294 [2009]).

The People proved, by a preponderance of the evidence, the amount of the victim's out-of-pocket losses—-"the amount necessary to make him whole" (People v Tzitzikalakis, 8 NY3d 217, 221 [2007]). The evidence supporting the restitution award constituted "a detailed itemization of documented medical costs incurred by the victim in the course of receiving treatment from named health providers" (People v Kim, 91 NY2d 407, 411 [1998]; see CPL 400.30 [4]; People v Drew, 16 AD3d 840, 841 [2005]). To the extent defendant claims that he is unable to pay the restitution, the sentencing court was not required to determine defendant's ability to pay, as he was sentenced to a term of probation (see Penal Law § 60.27; People v Pordy, 112 AD3d 654 [2013]).

The Justice Court's imposition a term of three years' probation was not excessive (see People v Suitte, 90 AD2d 80 [1982]; People v Kent, 30 Misc 3d 134[A], 2011 NY Slip Op 50087[U]; [App Term, 9th & 10th Jud Dists 2011]; cf. People v Armstrong, 188 AD2d 1056 [1992]; People v Notey, 72 AD2d 279 [1980]; People v Pollack, 70 AD2d 868 [1979]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: May 09, 2014