| People v Tucker |
| 2017 NY Slip Op 05249 [151 AD3d 1085] |
| June 28, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tesfa Tucker, Appellant. |
Laurette D. Mulry, Riverhead, NY (Louis E. Mazzola of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Ambro, J.),rendered September 11, 2015, convicting him of attempted assault in the second degree, assaultin the third degree, and attempted obstructing governmental administration in the second degree,after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions of attemptedassault in the second degree and attempted obstructing governmental administration in thesecond degree and vacating the sentences imposed thereon; as so modified, the judgment isaffirmed.
As the People correctly concede, attempted assault in the second degree, as defined by PenalLaw § 120.05 (3), is a legal impossibility (see People v Campbell, 72 NY2d602, 605 [1988]; People vBarksdale, 139 AD3d 1080, 1080 [2016]; People v Grant, 73 AD3d 1079, 1079 [2010]; People vWyrich, 259 AD2d 718, 718 [1999]; People v Perez, 218 AD2d 754, 755 [1995]). Asthe People also correctly concede, attempted obstructing governmental administration in thesecond degree is not a legally cognizable offense (see People v Schmidt, 76 Misc 2d 976,978-979 [1974]; see also People v Campbell, 72 NY2d at 607). Thus, the defendant'sconvictions of attempted assault in the second degree and attempted obstructing governmentaladministration in the second degree and the sentences imposed thereon must be vacated (seePeople v Campbell, 72 NY2d at 607; People v Barksdale, 139 AD3d at 1080;People v Grant, 73 AD3d at 1080; People v Wyrich, 259 AD2d at 718; Peoplev Perez, 218 AD2d at 755), and the defendant's contention that the sentence imposed on theconviction of attempted assault in the second degree was excessive need not be reached (see People v Dunaway, 134 AD3d952, 954 [2015]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of assault in the third degree beyond a reasonable doubt, including that hecaused "physical injury" to the complainant (see Penal Law §§ 10.00[9]; 120.00 [2]; People v Williams,146 AD3d 906, 909 [2017]; Peoplev Carson, 126 AD3d 996, 997 [2015]; People v Monserrate, 90 AD3d 785, 788 [2011]). Moreover, upon[*2]our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt of assault in the third degree was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The defendant's contention that his waiver of the right to a jury trial was invalid isunpreserved for appellate review (see CPL 470.05 [2]; People v Johnson, 51NY2d 986, 987 [1980]; People vWilliams, 149 AD3d 986 [2017]; People v Petitbrun, 123 AD3d 1057, 1058 [2014]; People v Butler, 17 AD3d 379,380 [2005]) and is, in any event, without merit. The defendant discussed the waiver of his rightto a jury trial with his attorney and executed a written waiver in open court after allocution by thecourt, the court approved the waiver, and the circumstances surrounding the waiver support thecourt's determination that it was knowingly, intelligently, and voluntarily made (see People v Williams, 149 AD3d986 [2017]; People v Pazmini,132 AD3d 1015, 1015 [2015]; People v Gucciardo, 128 AD3d 983, 984 [2015]; People v Campos, 93 AD3d 581,582-583 [2012]; People v Silva, 91AD3d 675, 675 [2012]; People v Butler, 17 AD3d at 380; People v Cassano,279 AD2d 636, 636 [2001]).
Contrary to the defendant's contention, the County Court providently exercised its discretionin declining to, sua sponte, order an additional examination of the defendant pursuant to CPLarticle 730 prior to sentencing (seePeople v Sulaiman, 134 AD3d 860, 860 [2015]; People v Bennett, 63 AD3d 1086, 1087 [2009]; People v Pallonetti, 62 AD3d1027, 1027 [2009]; People vRios, 26 AD3d 521, 521 [2006]; People v Soto, 23 AD3d 586, 586 [2005]). Nothing in the recordindicates that the defendant "lack[ed] [the] capacity to understand the proceedings against him orto assist in his own defense" (CPL 730.10 [1]; see People v Phillips, 16 NY3d 510, 516 [2011]; People v Mendez, 1 NY3d 15, 20[2003]; People v Tortorici, 92 NY2d 757, 765 [1999]; People v Morgan, 87NY2d 878, 881 [1995]; People v Pallonetti, 62 AD3d at 1027; People v Perez, 46 AD3d 708, 709[2007]). Balkin, J.P., Austin, Roman and LaSalle, JJ., concur.