| People v Tabb |
| 2009 NY Slip Op 00922 [59 AD3d 1080] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristianTabb, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
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 apeace officer, police officer, fireman or emergency medical services professional and assault inthe 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, interalia, of assault on a peace officer, police officer, fireman or emergency medical servicesprofessional (Penal Law § 120.08). Viewing the evidence in light of the elements of thecrimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst 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 rejectdefendant'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 hiscontention that the evidence of serious physical injury is legally insufficient to support theconviction 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 notunduly 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 contentionsas 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.