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THE PEOPLE, res v. ROBERT MUIER A/K/A ROBERT MAIER, def-app

13-163. THE PEOPLE, res v. ROBERT MUIER A/K/A ROBERT MAIER, def-app — Judgment of conviction (Anthony J. Ferrara, J.), rendered June 13, 2012, 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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13-163. THE PEOPLE, res v. ROBERT MUIER A/K/A ROBERT MAIER, def-app — Judgment of conviction (Anthony J. Ferrara, J.), rendered June 13, 2012, 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 §§110.00/120.00[1]) was based on legally sufficient evidence and was not against the weight of the evidence. The trial court, as fact finder, reasonably could conclude that when defendant punched the complainant cab driver in the face, causing redness and swelling, he did so with intent to cause physical injury (see Penal Law 120.00[1]; Matter of Edward H., 61 AD3d 473, 473 [2009]; Matter of Marcel F., 233 AD2d 442, 442-443 [1996]).

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