Opinion
924 KA 11-00791.
10-02-2015
The PEOPLE of the State of New York, Respondent, v. Sylvester BRITT, Jr., Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Mark C. Davison of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Mark C. Davison of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM: On appeal from a judgment convicting him following a nonjury trial of, inter alia, assault in the second degree (Penal Law § 120.05 [3 ] ), defendant contends that the evidence is legally insufficient to establish that he intended to prevent the police officer from performing a lawful duty. We reject that contention inasmuch as there was ample evidence that defendant was aware that he was being pursued by the police after shoplifting from two stores and intended to prevent the police officer from arresting him by fleeing in a vehicle and on foot (see People v. Sparrow, 117 A.D.3d 1563, 1563–1564, 985 N.Y.S.2d 389, lv. denied 23 N.Y.3d 1043, 993 N.Y.S.2d 256, 17 N.E.3d 511 ; People v. Foster, 52 A.D.3d 957, 959, 860 N.Y.S.2d 273, lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 ; People v. Coulanges, 264 A.D.2d 853, 853, 696 N.Y.S.2d 466, lv. denied 94 N.Y.2d 878, 705 N.Y.S.2d 10, 726 N.E.2d 487 ). Further, we conclude that County Court did not fail to give the evidence the weight it should be accorded on the element of intent (see People v. Hicks, 128 A.D.3d 1221, 1222–1223, 9 N.Y.S.3d 474 ; People v. Bouwens, 128 A.D.3d 1393, 1393, 8 N.Y.S.3d 525 ; see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Any inconsistencies in the police officers' testimony raised issues of credibility, and we decline to disturb the court's credibility determination (see People v. Collins, 70 A.D.3d 1366, 1367, 897 N.Y.S.2d 803, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 ; People v. Gritzke, 292 A.D.2d 805, 805–806, 738 N.Y.S.2d 643, lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4 ).
We similarly conclude that the evidence is legally sufficient to establish that defendant caused the police officer to sustain a physical injury inasmuch as “[i]t is well settled that, ‘where a defendant's flight naturally induces a police officer to engage in pursuit, and the officer is killed [or injured] in the course of that pursuit, the causation element of the crime will be satisfied’ ” (People v. Cipollina, 94 A.D.3d 1549, 1550, 943 N.Y.S.2d 710, lv. denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764, quoting People v. Carncross, 14 N.Y.3d 319, 325, 901 N.Y.S.2d 112, 927 N.E.2d 532 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.