People v Batista, 2011 NY Slip Op 07295 [88 AD3d 545]

October 18, 2011

Appellate Division, First Department

— [*1]

Steven Banks, The Legal Aid Society, New York (Adrienne Hale of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jean Soo Park of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered May 19, 2009, convicting defendant, after a nonjury trial, of harassment in the second degree, and sentencing him to a term of 15 days, unanimously affirmed.

Defendant did not preserve his challenge to the legal sufficiency of the evidence, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations. The evidence supports the inference that defendant acted with the requisite intent for second-degree harassment ( see Penal Law § 240.26 [1]; People v Bartkow , 96 NY2d 770 [2001]), particularly since defendant swung at the victim while making threats of violence. Concur—Saxe, J.P., Friedman, Moskowitz, Freedman and Richter, JJ..