People v Manuel

People v Manuel 2010 NY Slip Op 02310 [71 AD3d 1491] March 19, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

The People of the State of New York, Respondent, v David Manuel, Appellant.

—[*1] 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.

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).

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 [3]), 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 [1995]; People v Townsley, 50 AD3d 1610, 1611 [2008], lv denied 11 NY3d 742 [2008]). 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 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We have reviewed defendant's remaining contention and conclude that it is without merit. Present—Centra, J.P., Fahey, Carni, Green and Pine, JJ.