Opinion
No. KA 09-02046.
March 19, 2010.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered June 7, 2007. The judgment convicted defendant, upon a nonjury verdict, of assault in the second degree (two counts).
SHAW SHAW P.C., HAMBURG (CHRISTOPHER M. PANNOZZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DOUGLAS A. GOERSS OF COUNSEL), FOR RESPONDENT.
Present: Centra, J.P., Fahey, Carni, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of two counts of assault in the second degree (Penal Law § 120.05), defendant contends that the conviction is not supported by legally sufficient evidence because the officers were not engaged in a lawful duty when they were injured. By failing to move for a trial order of dismissal on that ground, defendant failed to preserve his contention for our review ( see People v Gray, 86 NY2d 10, 19; People v Townsley, 50 AD3d 1610, 1611, lv denied 11 NY3d 742). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495). We have reviewed defendant's remaining contention and conclude that it is without merit.