Opinion
November 2, 1992
Appeal from the Supreme Court, Kings County (Goldman, J.).
Ordered that the judgment is affirmed.
The defendant became involved in a fight between his brother and another individual. There was testimony that during the incident, the defendant punched and kicked a third individual and tried to remove his coat. The defendant was acquitted of robbery in the second degree but convicted of assault in the second degree (Penal Law § 120.05).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620) we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. There is no requirement that the defendant be found guilty of a completed robbery to sustain a conviction for assault in the second degree (see, People v Littlejohn, 83 A.D.2d 856). Upon the exercise of our factual review power, we are satisfied that the verdict is not against the weight of the evidence (see, CPL 470.15).
The defendant's claim that the verdict is repugnant is unpreserved for appellate review, as he failed to raise the issue prior to discharge of the jury (see, People v Alfaro, 66 N.Y.2d 985; People v Satloff, 56 N.Y.2d 745). In any event, an acquittal of robbery in the second degree does not negate an essential element of assault in the second degree (see, People v Fasano, 129 A.D.2d 1004; People v Wilson, 156 A.D.2d 743). Thompson, J.P., Lawrence, Eiber and O'Brien, JJ., concur.