| People v Ross |
| 2018 NY Slip Op 04971 [163 AD3d 428] |
| July 5, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Michael Ross, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Daniel R. Lambright ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Amended judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June10, 2015, convicting defendant, after a nonjury trial, of assault in the second degree, criminalpossession of a forged instrument in the second degree (two counts), forcible touching,obstructing governmental administration in the second degree, resisting arrest and sexual abusein the third degree, and sentencing him, as a second felony offender, to an aggregate term ofseven years, unanimously modified, on the facts and as a matter of discretion in the interest ofjustice, to the extent of vacating the forged instrument convictions and dismissing those counts,and otherwise affirmed.
Defendant's argument that the assault count was not supported by legally sufficient evidenceof physical injury is unpreserved and we decline to review it in the interest of justice. As analternative holding, we reject it on the merits. We similarly find that the verdict was not againstthe weight of the evidence in this regard (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the court's credibility determinations. There was ample evidence to supportthe conclusion that, at the very least, the injuries to an officer went beyond mere "petty slaps,shoves, kicks and the like" (Matter of Philip A., 49 NY2d 198, 200 [1980]), and that theycaused "more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]). During a strugglewith defendant, an officer sustained lacerations, abrasions, and contusions on his elbow, handsand knees, and he reported significant pain that persisted for more than a week, and made itdifficult to use his thumb.
However, we find that the evidence failed to establish the knowledge element of criminalpossession of a forged instrument. While the two MetroCards, bent in a manner known to permitunpaid rides, qualified as forged instruments (see People v McFarlane, 63 AD3d 634 [1st Dept 2009], lvdenied 13 NY3d 837 [2009]), the totality of circumstances did not establish, beyond a [*2]reasonable doubt, that defendant knew the cards were bent in thatmanner. The evidence was consistent with innocent explanations, such as that defendant pickedup discarded MetroCards in the hope that they might have fares remaining on them.Concur—Renwick, J.P., Richter, Manzanet-Daniels, Tom, Gesmer, JJ.