People v Jenkins (Christopher)

[*1] People v Jenkins (Christopher) 2016 NY Slip Op 51692(U) Decided on November 29, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Gonzalez, JJ.
570840/15

The People of the State of New York, Respondent,

against

Christopher Jenkins, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Gilbert C. Hong, J.), rendered May 27, 2015, after a nonjury trial, convicting him of attempted assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Gilbert C. Hong, J.), rendered May 27, 2015, affirmed.

The verdict convicting defendant of attempted assault in the third degree (see Penal Law §§ 110.00, 120.00[1]) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis upon which to disturb the trial court's determinations concerning credibility. Defendant's intent to cause physical injury could be readily inferred from his act of throwing a punch in the direction of the police officer's face and then punching the officer in the stomach (Penal Law 120.00[1]; Matter of Edward H., 61 AD3d 473, 473 [2009]). "The fact that the officer managed to avoid physical injury [to his face] does not preclude a finding that [defendant] attempted to inflict such injury" (see Matter of Marcel F., 233 AD2d 442, 442-443 [1996]). Nor did defendant's struggle to avoid apprehension negate a finding that he acted with the requisite injurious intent (see People v Waite, 2002 NY Slip Op 50260[U] [App Term, 1st Dept 2002], lv denied 99 NY2d 540 [2002]).

Defendant's claim that the evidence was legally insufficient to establish that he came dangerously close to causing physical injury is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The factfinder could infer that defendant's first punch, which narrowly missed the officer's face because of his evasive action, came dangerously close to causing physical injury (see Penal Law § 110.00; People v Bracey, 41 NY2d 296, 300 [1977]; Matter of Charles C., 309 AD2d 516, 517 [2003]; see also Penal Law

§ 10.00[9]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 29, 2016