People v McCullough, 2012 NY Slip Op 08253 [101 AD3d 415]

December 4, 2012

Appellate Division, First Department

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Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Simpson Thacher & Bartlett LLP, New York (Hiral D. Mehta of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered May 24, 2011, convicting defendant, after a jury trial, of assault in the second degree, and sentencing her to a term of six months, concurrent with five years’ probation, unanimously affirmed. The matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (5).

Defendant’s legal sufficiency claim is unpreserved 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 jury’s credibility determinations. The jury could have reasonably inferred that when defendant kicked the victim she did so with intent to cause serious physical injury. That inference was supported by the totality of defendant’s violent and threatening conduct toward the victim, not limited to the moment of the kick. The testimony of the victim and her surgeon established that the kick caused the victim’s disabling injury ( see generally Matter of Anthony M. , 63 NY2d 270, 280-281 [1984]).

We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Friedman, Acosta and Freedman, JJ..