Opinion
2004-11060.
March 14, 2006.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 13, 2004, convicting him of attempted assault on a police officer (two counts), assault in the second degree, operating a motor vehicle while under the influence of alcohol, aggravated unlicensed operation of a motor vehicle in the first degree, resisting arrest, obstructing governmental administration in the second degree, and disorderly conduct (two counts), after a nonjury trial, and imposing sentence.
Steven A. Feldman, Uniondale, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Daniel M. Reback of counsel), for respondent.
Before: Schmidt, J.P., Crane, Rivera and Spolzino, JJ., concur.
Ordered that the judgment is modified, on the law, by vacating the convictions of attempted assault on a police officer, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
As the People correctly concede, the attempt to assault a police officer is a legal impossibility ( see Penal Law §§ 110.00, 120.08; People v. Campbell, 72 NY2d 602, 607; People v. Graham, 302 AD2d 984, 985). Accordingly, the defendant's convictions of attempted assault of a police officer under Penal Law §§ 110.00 and 120.08 must be vacated.
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of two counts of disorderly conduct ( see Penal Law § 240.20, [3]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The defendant's remaining contentions have been rendered academic.