| People v Hutchinson |
| 2008 NY Slip Op 09619 [57 AD3d 565] |
| December 2, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidHutchinson, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Lauren-Brooke Eisen and AnneGrady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.),rendered October 11, 2006, convicting him of assault on a police officer and assault in the seconddegree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish, beyond a reasonable doubt,that the defendant caused serious physical injury to the police officer identified in count one of theindictment with the intent to prevent her from performing a legal duty (see Penal Law§§ 120.08, 10.00 [10]; People v Kibbe, 35 NY2d 407, 412 [1974]; Peoplev Kenward, 266 AD2d 155 [1999]; People v Thompson, 245 AD2d 321 [1997];People v Wright, 221 AD2d 577 [1995]; People v Gibson, 140 AD2d 453 [1988];People v Gray, 47 AD2d 674 [1975]). Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt on that count was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
While the defendant's contention that the evidence was legally insufficient to establish that hecommitted the crime of assaulting a police officer under count one of the indictment was preserved forappellate review, his contention that the evidence was legally insufficient to establish that he committedthe [*2]crime of assault in the second degree under count three of theindictment is not (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008];People v Bynum, 70 NY2d 858 [1987]). As to the latter, although the defendant did raise asimilar argument in his motion pursuant to CPL 330.30 to set aside the verdict, raising such an argumentfor the first time in such a motion is not sufficient to preserve a claim for appellate review (seePeople v Padro, 75 NY2d 820 [1990]; People v Sadler, 49 AD3d 670 [2008]). We decline to review that issuein the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]; [6] [a]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83 [1982]).Spolzino, J.P., Angiolillo, Dickerson and Belen, JJ., concur.