People v. Heard ( 2010 )

— Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J), rendered May 3, 2007. 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]). Defendant failed to preserve for our review his contention that the indictment is duplicitous (see People v Backus, 67 AD3d 1428, 1429 [2009], lv denied 13 NY3d 936 [2010]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present — Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.