People v. Belcher

289 A.D.2d 1039, 735 N.Y.S.2d 299, 2001 N.Y. App. Div. LEXIS 12673

Opinion

Judgment unanimously affirmed. Memorandum: Defendant was convicted of assault in the first degree (Penal Law § 120.10 [3]) and assault in the second degree (Penal Law § 120.05 [9]). The charges arose when defendant shook his two-month-old son, causing a serious brain injury. We reject defendant’s contention that the verdict is repugnant. Defendant could intend to cause physical injury to his son and, at the same time, recklessly create “a grave risk that a different, more serious result — death—would ensue from his actions” (People v Trappier, 87 NY2d 55, 59; see also, People v Moloi, 135 AD2d 576, 577, lv denied 70 NY2d 1009). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Ontario County Court, Harvey, J. — Assault, 1st Degree.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Gorski, JJ.