| People v Townsley |
| 2008 NY Slip Op 03910 [50 AD3d 1610] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TaydenTownsley, Appellant. |
—[*1] Tayden Townsley, defendant-appellant pro se. Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of counsel), forrespondent.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of twocounts of assault in the second degree (Penal Law § 120.05 [3]), defendant contends thatthe evidence is legally insufficient to support the conviction inasmuch as the People failed toestablish that he intended to prevent the correction officers in question from performing a lawfulduty. Defendant failed to preserve his contention for our review with respect to the first of thetwo counts of assault in the second degree because his motion for a trial order of dismissal withrespect to that count "was not specifically directed at the ground advanced on appeal" (People v Vassar, 30 AD3d 1051,1052 [2006], lv denied 7 NY3d 796 [2006]; see People v Gray, 86 NY2d 10, 19[1995]). In any event, we conclude that the evidence is legally sufficient with respect to bothcounts of which he was convicted and that, contrary to defendant's further contention, the verdictis not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]).
Defendant also failed to preserve for our review his contention that County Court's chargewas deficient based on the court's failure to articulate a sufficient instruction with respect to themeaning of the "lawful duty" element of Penal Law § 120.05 (3) (see People vMcMillan, 234 AD2d 1006 [1996], lv denied 89 NY2d 1038 [1997]; see also People v Bowers, 4 AD3d558, 560 [2004], lv denied 2 NY3d 796 [2004]). In addition, he failed to preserve forour review his contention that the verdict is repugnant insofar as the jury found him guilty ofassault in the second degree under Penal Law § 120.05 (3) and acquitted him of assault inthe second degree under section 120.05 (7) (see CPL 470.05 [2]). We decline to exerciseour power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). The sentence is not unduly harsh or severe.[*2]
We have considered defendant's remaining contentions,including those raised in the pro se supplemental brief, and conclude that they are without merit.Present—Hurlbutt, J.P., Smith, Fahey, Green and Pine, JJ.