Opinion
KA 02-01141.
February 11, 2004.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered April 10, 2002. The judgment convicted defendant, upon a jury verdict, of reckless endangerment in the second degree (two counts), assault in the first degree, assault on a police officer and criminal mischief in the second degree.
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR DEFENDANT-APPELLANT. DEMAINE JACKSON, DEFENDANT-APPELLANT PRO SE.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of reckless endangerment in the second degree (Penal Law § 120.20) and one count each of assault in the first degree (§ 120.10 [1]), assault on a police officer (§ 120.08) and criminal mischief in the second degree (§ 145.10). Defendant failed to preserve for our review his challenges to the legal sufficiency of the evidence to establish his intent to cause serious physical injury to the officer, to prevent the officer from performing a lawful duty, or to damage the patrol car ( see People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678; People v. Gray, 86 N.Y.2d 10, 19). We decline to exercise our power to review those challenges as a matter of discretion in the interest of justice ( see CPL 470.15 [a]; People v. McCain, 307 A.D.2d 764, 765, lv denied 100 N.Y.2d 622). Although the contention that the evidence is not legally sufficient to establish that defendant caused serious physical injury to the officer is preserved for our review, it is without merit ( see Penal Law § 10.00; People v. Blunt, 176 A.D.2d 741, 742; People v. Bell, 112 A.D.2d 27; People v. Hall, 89 A.D.2d 788, 789; People v. Ahearn, 88 A.D.2d 691, 692; see generally People v. Bleakley, 69 N.Y.2d 490, 495).
The contention of defendant that he was denied effective assistance of counsel is based on facts dehors the record and consequently must be raised by a motion brought pursuant to CPL article 440 ( see People v. Nicholson, 269 A.D.2d 868, 869, lv denied 95 N.Y.2d 907; People v. Parker, 220 A.D.2d 815, 817, lv denied 87 N.Y.2d 1023; see also People v. Galleria, 264 A.D.2d 899, lv denied 94 N.Y.2d 880). Defendant has failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation ( see 470.05 [2]; People v. Wright, 269 A.D.2d 831, lv denied 94 N.Y.2d 954). In any event, there is no merit to that contention. We have considered defendant's remaining contentions and conclude that they are without merit.