PEOPLE v. BELCHER (2001)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Brian J. BELCHER, Defendant-Appellant.

Decided: December 21, 2001

PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE and GORSKI, JJ.

John E. Tyo, for defendant-appellant. R. Michael Tantillo, for plaintiff-respondent.

Defendant was convicted of assault in the first degree (Penal Law § 120.10[3] ) and assault in the second degree (Penal Law § 120.05[9] ). The charges arose when defendant shook his two-month-old son, causing a serious brain injury. We reject defendant's contention that the verdict is repugnant. Defendant could intend to cause physical injury to his son and, at the same time, recklessly create “a grave risk that a different, more serious result-death-would ensue from his actions” (People v. Trappier, 87 N.Y.2d 55, 59, 637 N.Y.S.2d 352, 660 N.E.2d 1131; see also, People v. Moloi, 135 A.D.2d 576, 577, 521 N.Y.S.2d 794, lv. denied 70 N.Y.2d 1009, 526 N.Y.S.2d 943, 521 N.E.2d 1086). The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM:

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