<partyblock><br><br><div align="center"><b><font size="+1">The People of the State of New York, Respondent,<br><br>against<br><br>Eli Cherkasky, Defendant-Appellant.</font></b></div><br><br><p>Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ann E. Scherzer, J.), rendered November 5, 2015, after a nonjury trial, convicting him of criminal obstruction of breathing or blood circulation, assault in the third degree and harassment in the second degree, and imposing sentence.</p><p>Per Curiam.</p><p>Judgment of conviction (Ann E. Scherzer, J.), rendered November 5, 2015, affirmed.</p><p>Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (<i>see People v Gray</i>, 86 NY2d 10, 19 [1995]), and we decline to review it in the interest of justice. As an alternative holding, we find that the verdict convicting defendant of third-degree assault (<i>see</i> Penal Law ยง 120.00[1]), criminal obstruction of breathing or blood circulation (<i>see</i> Penal Law ยง 121.11[a]) and second-degree harassment (<i>see</i> Penal Law ยง 240.26[1]) was based on legally sufficient evidence. The evidence established that defendant, who was intoxicated after a long day of drinking, became embroiled in a Halloween night altercation in a Manhattan bar, during which he exchanged harsh words with the female victim, a fellow patron, knocked her against a railing, tackled her to the floor, kneeled on top of her, grabbed her neck and struck her in the face. The element of intent to interfere with the victim's breathing (<i>see</i> Penal Law 121.11[a]) was satisfied by the victim's credited testimony that defendant grabbed her neck during the altercation and applied pressure, causing her to have difficulty breathing (<a href="../2015/2015_04879.htm" target="_blank"><i>see People v Briggs</i>, 129 AD3d 1201</a>, 1203 [2015], <i>lv denied </i>26 NY3d 1038 [2015];<a href="../2014/2014_04274.htm" target="_blank"><i> People v Peterson, </i>118 AD3d 1151</a>, 1154 [2014], <i>lvs denied </i>24 NY3d 1087 [2014]; <a href="../2013/2013_08158.htm" target="_blank"><i>People v Carte</i>, 113 AD3d 191</a>, 195 [2013], <i>lv denied </i>23 NY3d 1035 [2014]). The evidence also supported the conclusion that defendant intended to cause, and did cause, physical injury to complainant (<i>se</i>e Penal Law ยง 120.00[1]), including bruising, redness and swelling, which made it difficult for her to swallow, and substantial pain (<a href="../2013/2013_02170.htm" target="_blank"><i>see People v Mullings</i>, 105 AD3d 407</a> [2013]; <i>lv denied </i>21 NY3d 945 [2013]<a href="../2009/2009_02825.htm" target="_blank"><i>; Matter of Edward H</i>., 61 AD3d 473</a>, 473 [2009]), and that he intended to harass, annoy or alarm complainant (<i>see</i> Penal Law ยง 240.26[1]; <a href="../2011/2011_01200.htm" target="_blank"><i>People v Mollaie</i>, 81 AD3d 1448</a> [2011]; <a href="../2010/2010_06147.htm" target="_blank"><i>People v Correa</i>, 75 AD3d 478</a> [2010], <i>lv denied </i>15 NY3d 892 [2010]).</p><p>We also find that the verdict was not against the weight of the evidence (<a href="../2007/2007_09814.htm" target="_blank"><i>see People v Danielson</i>, 9 NY3d 342</a>, 348โ��349 [2007]). Issues of credibility, including the weight to be given <font color="FF0000">[*2]</font>to the inconsistencies in the victim's testimony, were properly considered by the court, and there is no basis to disturb its credibility determinations. In this regard, we note that the video evidence captured from security cameras was of poor quality. However, the trial court had the benefit of seeing the evidence in the context of the testimony of the individuals portrayed in the videos.</p><p>THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.</p><br>I concur I concur I concur<br>Decision Date: October 31, 2016<br><br><div align="center"><form method="LINK" action="../../slipidx/at_1_idxtable.shtml"><input type="submit" value="Return to Decision List"></form></div></partyblock>