Opinion
2017–10991 Ind. No. 1035/14
10-16-2019
The PEOPLE, etc., respondent, v. Umberto CALIFANO, appellant.
Thomas A. Kenniff, Mineola, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Hilda Mortensen, Brooklyn and W. Thomas Hughes of counsel), for respondent.
Thomas A. Kenniff, Mineola, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Hilda Mortensen, Brooklyn and W. Thomas Hughes of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The defendant was charged with assault in the second degree ( Penal Law § 120.05[3] ), resisting arrest ( Penal Law § 205.30 ), obstructing governmental administration in the second degree ( Penal Law § 195.05 ), and disorderly conduct ( Penal Law § 240.20[3] ) arising out of an altercation he had with a police officer who had been investigating a complaint of slashed car tires in a neighborhood in Oceanside, Nassau County. In March 2016, the defendant was convicted, upon a jury verdict, of disorderly conduct; the jury could not reach a verdict as to the remaining charges. This Court affirmed the defendant's conviction of disorderly conduct (see People v. Califano, 155 A.D.3d 647, 62 N.Y.S.3d 812 ). Upon retrial in June 2016 of the charges of assault in the second degree, resisting arrest, and obstructing governmental administration in the second degree, the defendant was convicted, upon a jury verdict, of assault in the second degree and resisting arrest. The defendant appeals.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of assault in the second degree ( Penal Law § 120.05[3] ) and resisting arrest ( Penal Law § 205.30 ; see People v. Riccobono, 282 A.D.2d 552, 552–553, 722 N.Y.S.2d 752 ; People v. Coulanges, 264 A.D.2d 853, 853, 696 N.Y.S.2d 466 ; see also People v. Weaver, 16 N.Y.3d 123, 128, 919 N.Y.S.2d 99, 944 N.E.2d 634 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant failed to preserve for appellate review his contention that the Supreme Court erred in charging the jury (see People v. Spillman, 57 A.D.3d 580, 581, 870 N.Y.S.2d 363 ; People v. Henry, 306 A.D.2d 539, 539–540, 761 N.Y.S.2d 853 ). In any event, the contention is without merit (see People v. Commesso, 184 A.D.2d 719, 721, 585 N.Y.S.2d 80 ; see also People v. Spillman, 57 A.D.3d at 581, 870 N.Y.S.2d 363 ).
CHAMBERS, J.P., MALTESE, DUFFY and CHRISTOPHER, JJ., concur.