Opinion
No. KA 06-00771.
February 6, 2009.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered March 22, 2006. The judgment convicted defendant, upon a jury verdict, of assault on a peace officer, police officer, fireman or emergency medical services professional and assault in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MARY GOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Smith, Centra, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict, inter alia, of assault on a peace officer, police officer, fireman or emergency medical services professional (Penal Law § 120.08). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). The jury was entitled to credit the testimony of the People's witnesses and to reject defendant's justification defense ( see generally People v Inguaggiato, 267 AD2d 248, lv denied 94 NY2d 921; People v Green, 240 AD2d 513, lv denied 90 NY2d 940). Defendant failed to preserve for our review his contention that the evidence of serious physical injury is legally insufficient to support the conviction of assault under Penal Law § 120.08 ( see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678), and we conclude that the sentence is not unduly harsh or severe. Defendant failed to preserve his remaining contentions for our review ( see CPL 470.05), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).