People v Lexus M.

[*1] People v Lexus M. 2014 NY Slip Op 51455(U) Decided on September 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2012-1708 D CR

The People of the State of New York, Respondent,

against

Lexus M. (ANONYMOUS), Appellant.

Appeal from a judgment of the Justice Court of the Town of Wappingers Falls, Dutchess County (Raymond C. Chase, Jr., J.), rendered June 28, 2012. The judgment adjudicated defendant a youthful offender upon a nonjury verdict finding her guilty of assault in the third degree.

ORDERED that the judgment adjudicating defendant a youthful offender is affirmed.

Defendant was adjudicated a youthful offender upon a nonjury verdict finding her guilty of assault in the third degree (Penal Law § 120.00 [1]). On appeal, defendant argues that the accusatory instrument was facially insufficient, and that the judgment is based upon legally insufficient evidence and is against the weight of the evidence.

In order for an information to be facially sufficient, it (and/or any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731), and the failure to meet these requirements may be asserted at any time, with the exception of a claim of hearsay, which, insofar as is relevant to this appeal, is waived if it is not timely raised by motion in the trial court (see People v Casey, 95 NY2d 354). Here, to the extent that defendant argues on appeal that the information is jurisdictionally defective because it is based upon hearsay, she has waived that argument. Furthermore, contrary to defendant's argument on appeal, the supporting deposition was properly verified (see People v Coldiron, 79 Misc 2d 338 [App Term, 9th & 10th Jud Dists 1974]).

"A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person" (Penal Law § 120.00 [1]). The information and supporting deposition allege that defendant told the complaining witness that she was "going to have to hit him" and that she then hit him in the head with a closed fist, causing, among other things, a broken nose. We find the information to be facially sufficient to allege the offense of assault in the third degree.

Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt, of assault in the third degree. Moreover, in fulfilling this court's responsibility to conduct an independent review of the weight of the [*2]evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the trier of fact's opportunity 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 of assault in the third degree is not against the weight of the evidence.

Accordingly, the judgment adjudicating defendant a youthful offender is affirmed.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: September 22, 2014