NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT
March 19, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DAVID MANUEL, APPELLANT.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered June 7, 2007. The judgment convicted defendant, upon a non-jury verdict, of assault in the second degree (two counts).
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 28, 2010
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
On appeal from a judgment convicting him upon a non-jury 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 non-jury 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.
Present---Centra, J.P., Fahey, Carni, Green and Pine, JJ.
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