Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent,


Garrett L. BROCKINGTON, Appellant.

Dec. 2, 1993.

Randall E. Kehoe, Albany, for appellant.

Sol Greenberg, Dist. Atty. (Risa L. Viglucci, of counsel), Albany, for respondent.


MERCURE, Justice.

Appeal from a judgment of the Supreme Court (Harris, J.), rendered July 25, 1991 in Albany County, upon a verdict convicting defendant of the crime of assault in the second degree.

At approximately 8:15 P.M. on December 12, 1990, Nancie Eaddy answered the front door of the residence at 86 North Swan Street in the City of Albany and admitted Timothy Temple, who was followed by defendant. While Temple went to use the bathroom, Eaddy and defendant argued about the fact that defendant was not welcome in the house because of problems which had developed between defendant and his former girlfriend, Bessie Keene, who lived on the third floor of the dwelling. Defendant then pushed his way around Eaddy and proceeded up the stairs. He encountered Keene on the second floor landing and stabbed her in the back and arm with a hunting knife. With the knife still in his hand, defendant then walked back down the stairs and out the door. Defendant was arrested the following day in Oneida County and was subsequently indicted for attempted murder in the second degree, assault in the first degree and two counts of assault in the second degree. After a jury trial, defendant was convicted of assault in the second degree and sentenced as a second felony offender to an indeterminate prison term of 3 1/2 to 7 years. He now appeals.

[1] The primary contention advanced on appeal, that the jury's verdict was against the weight of the evidence (CPL 470.15[5]; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), is patently meritless. Although defendant presented evidence that he was in Oneida County at the time of the crime, this alibi defense was directly refuted by the testimony of Keene and Eaddy, who knew defendant well and identified him as the assailant, and Temple, *571 who placed defendant in the 86 North Swan Street residence at the time of the crime. Under the circumstances, we conclude that a finding different than that reached by the jury would have been unreasonable (see,People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

[2] The contentions that the prosecutor made impermissible comments during his summation and that Supreme Court erred in failing to give a limiting instruction concerning evidence of defendant's prior criminal conviction were not preserved for appellate review by appropriate objection at trial (see,CPL 470.05[2]; People v. Jordan, 193 A.D.2d 890, 893, 597 N.Y.S.2d 807, 809; People v. Longo, 182 A.D.2d 1019, 1022, 582 N.Y.S.2d 832,lv. denied80 N.Y.2d 906, 588 N.Y.S.2d 831, 602 N.E.2d 239). Moreover, in view of the overwhelming evidence of defendant's guilt, any such error was harmless. Finally, because the evidence against defendant was not entirely circumstantial, defendant was not entitled to a charge that the People had the burden of excluding beyond a reasonable doubt every reasonable hypothesis of innocence (cf.,People v. Sanchez, 61 N.Y.2d 1022, 475 N.Y.S.2d 376, 463 N.E.2d 1228), and the sentence was by no means harsh and excessive.

ORDERED that the judgment is affirmed.

WEISS, P.J., and CARDONA, WHITE and MAHONEY, JJ., concur.

Live Chat Support

- - - - - - - - - - - - - - - - - - - - - -

If we are away or you are having technical difficulties, please feel free to contact us using the "Get Started Now" form to the right or call our office by phone at (518) 465-2211.