Opinion
January 14, 1971
Appeal from a judgment of the County Court of Chemung County, rendered June 12, 1969, upon a verdict convicting defendant of the crime of assault in the second degree in violation of subdivision 3 of section 120.05 Penal of the Penal Law. Defendant was sentenced to one year in the Chemung County Jail. There is no merit to appellant's contentions that the prosecution failed to prove beyond a reasonable doubt that he intended to prevent Lieutenant Wilmot from performing a lawful duty, and that he caused physical injury to the officer. The required intent of subdivision 3 of section 120.05 Penal of the Penal Law is that the defendant intend to prevent a peace officer from performing a lawful duty. The evidence in the record, together with appellant's concession that he attempted to escape from the custody of the officer in whose control he was at the time, supports the finding of guilt. Appellant's contention that the prosecution failed to prove that he caused physical injury to the officer is likewise unavailing. In attempting to recapture appellant, the officer fell to the ground, sustaining injuries to his wrist and knee. When appellant continued to struggle, his feet struck the officer's shoulders and chest, causing further injuries. From the evidence, the trier of the facts could find that the appellant caused the officer to sustain substantial pain and therefore "physical injury" within the meaning of subdivision 9 of section 10.00 Penal of the Penal Law. Judgment affirmed. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.