People v. Tabb

59 A.D.3d 1080, 872 N.Y.S.2d 810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2009
• Status: Published

Opinion

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.

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 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). 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 [1999], lv denied 94 NY2d 921 [2000]; People v Green, 240 AD2d 513 [1997], lv denied 90 NY2d 940 [1997]). 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 [2001], rearg denied 97 NY2d 678 [2001]), 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 [2]), 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 [6] [a]). Present—Martoche, J.P, Smith, Centra, Green and Pine, JJ.