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THE PEOPLE, res, v. KIER VALENTINE, def-app

14-254. THE PEOPLE, res, v. KIER VALENTINE, def-app — Judgment of conviction (Kevin B. McGrath, J.), rendered June 21, 2013, modified, on the law, to vacate defendant's conviction for attempted criminal mischief in the fourth degree and to dismiss the count of the accusatory instrument relating thereto and, as modified, affirmed.

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14-254. THE PEOPLE, res, v. KIER VALENTINE, def-app — Judgment of conviction (Kevin B. McGrath, J.), rendered June 21, 2013, modified, on the law, to vacate defendant’s conviction for attempted criminal mischief in the fourth degree and to dismiss the count of the accusatory instrument relating thereto and, as modified, affirmed.

The verdict convicting defendant of attempted assault in the third degree (see Penal Law §§110.00/121.11) and attempted criminal obstruction of breathing or blood circulation (see Penal Law §§110.00/121.11) was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the trial court’s determinations concerning credibility. The credited evidence established that during an argument, defendant grabbed complainant by her hair and pinned her to his bed, punched her in the face with a closed fist at least five times — resulting in facial swelling, bruises and the complainant’s glasses being broken in half — and then stuck his fingers down complainant’s throat until she gagged and could not breathe.

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