| People v Sponburgh |
| 2009 NY Slip Op 03316 [61 AD3d 1415] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GreggSponburgh, Appellant. |
—[*1] John H. Crandall, Sr., District Attorney, Herkimer (Jeffrey S. Carpenter of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), renderedSeptember 19, 2007. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree (two counts), vehicular assault in the second degree (four counts) andmisdemeanor driving while intoxicated (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him of, inter alia, two countsof assault in the second degree (Penal Law § 120.05 [4]) and four counts of vehicularassault in the second degree (§ 120.03 [1]). Defendant failed to preserve for our review hiscontentions that certain counts of the indictment are duplicitous and that other counts aremultiplicitous (see CPL 470.05 [2]; People v D'Eredita, 302 AD2d 925, 925-926[2003], lv denied 99 NY2d 654 [2003]), and we decline to exercise our power to reviewthose contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Defendant further contends that the evidence is legally insufficient to support theconviction of one count of assault and two counts of vehicular assault with respect to one of thevictims because the People failed to establish that the victim in question sustained a seriousphysical injury. We reject that contention (see generally People v Bleakley, 69 NY2d490, 495 [1987]). The record establishes that the victim in question sustained a "protractedimpairment of health" as a result of the collision inasmuch as his shoulder injury limits his rangeof motion and causes constant pain (Penal Law § 10.00 [10]; see People v Diaz,254 AD2d 36 [1998], lv denied 92 NY2d 1031 [1998]).
Defendant failed to preserve for our review his further contention that the People failed toestablish that he acted recklessly and thus that the conviction of assault with respect to bothvictims is not supported by legally sufficient evidence inasmuch as he failed to make a motionfor a trial order of dismissal that was specifically directed at that alleged error (see People vGray, 86 NY2d 10, 19 [1995]; People v Hryckewicz, 221 AD2d 990 [1995], lvdenied 88 NY2d 849 [1996]). Finally, the contention of defendant that he was deniedeffective assistance of counsel is raised for the first time in his reply brief and therefore is notproperly before us (see generally People v Williams, 292 AD2d 843 [2002], lvdenied 98 NY2d 703 [2002]). Present—Hurlbutt, J.P., Centra, Peradotto, Green andGorski, JJ.