SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
971
KA 12-00287
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JAMES A. GHENT, III, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered December 7, 2011. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of assault in the second degree (Penal Law §
120.05 [2]). Viewing the evidence in light of the elements of the
crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349),
we conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). “In a bench
trial, no less than a jury trial, the resolution of credibility issues
by the trier of fact and its determination of the weight to be
accorded the evidence presented are entitled to great deference”
(People v Van Akin, 197 AD2d 845, 845). County Court was entitled to
reject defendant’s version of the events “and, upon our review of the
record, we cannot say that the court failed to give the evidence the
weight that it should be accorded” (People v Britt, 298 AD2d 984, 984,
lv denied 99 NY2d 556). We reject defendant’s further contention that
he received ineffective assistance of counsel because counsel failed
to request a charge on the defense of intoxication. Defendant failed
to “demonstrate the absence of strategic or other legitimate
explanations for counsel’s failure to request” that charge (People v
Rivera, 71 NY2d 705, 709; see People v Taylor, 1 NY3d 174, 177).
Indeed, “[a] defense of intoxication would have been inconsistent with
. . . defendant’s [testimony] . . . that he” drank three or four beers
that evening, which affected his judgment to a certain extent, but
that he was not intoxicated (People v Gary, 299 AD2d 960, 961, lv
denied 99 NY2d 582). Finally, the sentence is not unduly harsh or
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KA 12-00287
severe.
Entered: October 2, 2015 Frances E. Cafarell
Clerk of the Court