People v. Devitt

People v Devitt (2023 NY Slip Op 01307) People v Devitt 2023 NY Slip Op 01307 Decided on March 15, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on March 15, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department BETSY BARROS, J.P. VALERIE BRATHWAITE NELSON DEBORAH A. DOWLING BARRY E. WARHIT, JJ. 2020-06680 (Ind. No. 2107/18) [*1]The People of the State of New York, respondent, v Jacob D. Devitt, appellant. Stephen R. Mahler, Kew Gardens, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Daniel Bresnahan and Madeline Collins of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered August 5, 2020, convicting him of assault in the first degree, gang assault in the first degree, assault in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting his convictions (see CPL 470.05[2]; People v Kolupa, 13 NY3d 786, 787; People v Faraone, 186 AD3d 1394, 1394). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645). The defendant did not demonstrate that he was deprived of the effective assistance of counsel (see Strickland v Washington, 466 US 668, 687-688; People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137, 147). The defendant's remaining contention may not be reviewed on direct appeal because it involves matter dehors the record. BARROS, J.P., BRATHWAITE NELSON, DOWLING and WARHIT, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court