| People v Pena |
| 2015 NY Slip Op 05423 [129 AD3d 600] |
| June 23, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Ignacio Pena, Appellant. |
Center for Appellate Litigation, New York (Robert S. Dean of counsel), forappellant.
Robert T. Johnson, District Attorney, Bronx (Julia L. Chariott of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Alvin Yearwood, J.), rendered March 16,2012, convicting defendant, after a jury trial, of assault in the second and third degrees,reckless endangerment in the second degree, unlawful fleeing a police officer in a motorvehicle in the third degree, and operating a motor vehicle while under the influence ofalcohol, and sentencing him, as a second violent felony offender, to an aggregate term ofsix years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). While an officer was lawfullyattempting to remove defendant from a car, defendant drove forward rapidly, with theofficer still hanging on to defendant, causing the officer to be dragged and injured. Thetotality of defendant's conduct throughout the incident supports the conclusion thatdefendant acted with intent to prevent the officer from performing a lawful duty(see Penal Law § 120.05 [3]; People v Bueno, 18 NY3d 160, 168-169 [2011]), and thatdefendant was not so intoxicated as to be unable to form the requisite intent (seePenal Law § 15.25; People v Stillwagon, 101 AD3d 1629 [4th Dept 2012],lv denied 21 NY3d 1020 [2013]).
Defendant's excessive sentence claim appears to be moot because he has completedhis prison term and, as a result of having been deported, he is not serving postreleasesupervision. In any event, we perceive no basis for reducing the sentence.Concur—Mazzarelli, J.P., Sweeny, Acosta, Clark and Kapnick, JJ.