| People v Mebane |
| 2010 NY Slip Op 00880 [70 AD3d 724] |
| February 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ScottMebane, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and JacquelineRosenblum of counsel), for respondent.
Appeal by the defendant from an amended judgment of the County Court, Nassau County(Ayres, J.), rendered May 30, 2007, convicting him of assault in the second degree, criminalpossession of a controlled substance in the third degree, criminal possession of a controlledsubstance in the seventh degree, and resisting arrest, upon a jury verdict, and imposing sentence.
Ordered that the amended judgment is affirmed.
The County Court properly discharged a juror just prior to opening statements, over thedefendant's objection, on the ground of "illness or other incapacity" (CPL 270.35 [1]), since thejuror was in her final month of pregnancy and, under the particular circumstances of this case,continued service would have posed a hardship to her (see People v Parson, 268 AD2d208, 209 [2000]; People v Vargas, 260 AD2d 258 [1999]; People v Edmonds,223 AD2d 455 [1996]). In view of our determination, we do not reach the defendant's contentionthat the County Court wrongly discharged the juror as grossly unqualified to serve (seeCPL 270.35 [1]). The defendant's contention that the County Court failed to make areasonably thorough inquiry of a juror, as required by CPL 270.35 (2) (a), before discharging herprior to opening statements is unpreserved for appellate review (see People v Settles, 28 AD3d 591[2006]; People v Riccardi, 199 AD2d 432, 432 [1993]). In any event, the contention iswithout merit (see People v Roque, 291 AD2d 417, 417 [2002]; People v Urbina,291 AD2d 421, 421 [2002]; People v Edmonds, 223 AD2d at 455).
The defendant failed to preserve for appellate review his contention that the evidence waslegally insufficient to support his conviction of assault in the second degree because the Peoplefailed to prove beyond a reasonable doubt that the complaining police officer sustained aphysical injury within the meaning of Penal Law § 10.00 (9), and that the defendantcaused such injury as he violently resisted arrest (see People v Gray, 86 NY2d 10, 19[1995]; People v Saeed, 60 AD3d975, 977 [2009]; People vAlston, 42 AD3d 468, 469 [2007]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish those elements of the offense beyond a reasonable doubt (see People v Oliver, 63 AD3d860, 860-861 [2009]; People v Saeed, 60 AD3d at 977; People v Rivera,183 AD2d 792, 793 [1992]; Penal Law § 120.05 [3]).[*2]
The defendant's contentions, raised in his supplementalpro se brief, that the evidence was legally insufficient to support his conviction of assault in thesecond degree with respect to all of the elements of that offense, and to support his convictionsof criminal possession of a controlled substance in the third and seventh degrees and resistingarrest, are also unpreserved for appellate review (see People v Gray, 86 NY2d at 19). Inany event, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of those crimes beyond a reasonable doubt. Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's trial attorney provided meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 146-147[1981]).
The defendant's remaining contention, raised in his supplemental pro se brief, is unpreservedfor appellate review and, in any event, is without merit. Skelos, J.P., Santucci, Dickerson andRoman, JJ., concur.