People v. Butler

187 A.D.2d 439, 589 N.Y.S.2d 542, 1992 N.Y. App. Div. LEXIS 12485

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered August 1, 1984, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant became involved in a fight between his brother and another individual. There was testimony that during the incident, the defendant punched and kicked a third individual and tried to remove his coat. The defendant was acquitted of robbery in the second degree but convicted of assault in the second degree (Penal Law § 120.05 [6]).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620) we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. There is no requirement that the defendant be found guilty of a completed robbery to sustain a conviction for assault in the second degree (see, People v Littlejohn, 83 AD2d 856). Upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s claim that the verdict is repugnant is unpreserved for appellate review, as he failed to raise the issue prior to discharge of the jury (see, People v Alfaro, 66 NY2d 985; People v Satloff, 56 NY2d 745). In any event, an acquittal of robbery in the second degree does not negate an essential element of assault in the second degree (see, People v Fasano, 129 AD2d 1004; People v Wilson, 156 AD2d 743). Thompson, J. P., Lawrence, Eiber and O’Brien, JJ., concur.