People v. Price

203 A.D.2d 940, 612 N.Y.S.2d 1019, 1994 N.Y. App. Div. LEXIS 4948

Opinion

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant contends that his conviction of two counts of assault in the second degree is not supported by legally sufficient evidence. We agree. The evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620), fails to establish that defendant was the inmate who assaulted the two correction officers. The proof is sufficient, however, to support defendant’s conviction of promoting prison contraband in the first degree (see, Penal Law § 205.25 [2]).

We modify the judgment, therefore, by reversing defendant’s conviction of two counts of assault in the second degree, vacating the sentences imposed thereon and dismissing counts one and three of the indictment. (Appeal from Judgment of Wyoming County Court, Dadd, J. — Assault, 2nd Degree.) Present — Green, J. P., Pine, Lawton, Callahan and Boehm, JJ.