SPARROW, LASHORN, PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
443.1
KA 12-01432
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
LASHORN SPARROW, DEFENDANT-APPELLANT.
KINDLON SHANKS AND ASSOCIATES, ALBANY (TERENCE KINDLON OF COUNSEL),
FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered August 2, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of assault in the second degree (Penal Law §
120.05 [former (3)]). By failing to renew his motion for a trial
order of dismissal after presenting evidence, defendant failed to
preserve for our review his contention that the conviction is not
supported by legally sufficient evidence (see People v Hines, 97 NY2d
56, 61, rearg denied 97 NY2d 678). In any event, that contention is
without merit (see generally People v Danielson, 9 NY3d 342, 349).
The People presented legally sufficient evidence from which the jury
could find that defendant knew that his vehicle had been pulled over
by the police, that the persons outside his vehicle were police
officers, that the officers were “performing a lawful duty,” and that
defendant “cause[d] physical injury to [a] police officer” when he
backed his vehicle up and drove away (§ 120.05 [former (3)]). In
addition, viewing the evidence in light of the elements of the crime
as charged to the jury (see Danielson, 9 NY3d at 349), we reject
defendant’s contention that the verdict is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Defendant failed to preserve for our review his contention that he was
deprived of a fair trial by prosecutorial misconduct (see CPL 470.05
[2]; People v Montero, 100 AD3d 1555, 1555, lv denied 21 NY3d 945),
and we decline to exercise our power to review that contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). We reject defendant’s further contention that he received
ineffective assistance of counsel. Viewing the evidence, the law and
-2- 443.1
KA 12-01432
the circumstances of the case, in totality and as of the time of the
representation, we conclude that defense counsel provided meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).
Finally, we have considered defendant’s remaining contentions and
conclude that none requires reversal or modification of the judgment.
Entered: May 9, 2014 Frances E. Cafarell
Clerk of the Court