PEOPLE v. WELLSBY (2006)

 Defendant appeals from a judgment convicting him after a jury trial of assault in the second degree (Penal Law § 120.05 [2] ) and unlawful imprisonment in the second degree (§ 135.05).   Defendant failed to renew his motion to dismiss at the close of the People's case after presenting evidence and thus failed to preserve for our review his contention that the assault conviction is not supported by legally sufficient evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Diefenbacher, 21 A.D.3d 1293, 1294, 801 N.Y.S.2d 466, lv. denied 6 N.Y.3d 775, 811 N.Y.S.2d 342, 844 N.E.2d 797).   In any event, the People presented legally sufficient evidence establishing that the banister constituted a dangerous instrument when defendant struck the victim's head against it (see People v. Galvin, 65 N.Y.2d 761, 762-763, 492 N.Y.S.2d 25, 481 N.E.2d 565;  People v. Ellman, 309 A.D.2d 535, 765 N.Y.S.2d 495, lv. denied 1 N.Y.3d 571, 775 N.Y.S.2d 788, 807 N.E.2d 901;  People v. Melville, 298 A.D.2d 601, 749 N.Y.S.2d 65, lv. denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174).   Defendant also failed to preserve for our review his further contention that prosecutorial misconduct on summation requires reversal (see People v. Early, 266 A.D.2d 881, 882, 698 N.Y.S.2d 190, lv. denied 94 N.Y.2d 918, 708 N.Y.S.2d 358, 729 N.E.2d 1157).   His contention is without merit in any event because the alleged misconduct was not so egregious as to deprive defendant of a fair trial (see id.).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: