Opinion
KA 03-01235.
March 18, 2005.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered April 22, 2003. The judgment convicted defendant, after a nonjury trial, of assault in the second degree.
Before: Pigott, Jr., P.J., Hurlbutt, Kehoe, Lawton and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of assault in the second degree (Penal Law § 120.05), defendant contends that the evidence is legally insufficient to establish that he intended to prevent the correction officer from performing a lawful duty. We reject that contention ( see People v. Spinks, 244 AD2d 921, 922). Further, County Court did not fail to give the evidence the weight it should be accorded on that element of the crime charged ( see id.; see generally People v. Bleakley, 69 NY2d 490, 495). We similarly conclude that the evidence is legally sufficient to establish that defendant caused the correction officer to sustain a physical injury ( see People v. Porter, 304 AD2d 845, lv denied 100 NY2d 565; People v. Sekoll, 254 AD2d 797, 797-798, lv denied 92 NY2d 1053), and that the verdict is not against the weight of the evidence in that respect ( see generally Bleakley, 69 NY2d at 495). Defendant was properly sentenced as a persistent violent felony offender ( see generally People v. Morse, 62 NY2d 205, 216-217, appeal dismissed 469 US 1186; People v. Ravanell, 156 AD2d 935). The sentence is not unduly harsh or severe.