PEOPLE v. TABB (2009)

Defendant appeals from a judgment convicting him upon a jury verdict, inter alia, of assault on a peace officer, police officer, fireman or emergency medical services professional (Penal Law § 120.08).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The jury was entitled to credit the testimony of the People's witnesses and to reject defendant's justification defense (see generally People v. Inguaggiato, 267 A.D.2d 248, 699 N.Y.S.2d 303, lv. denied 94 N.Y.2d 921, 708 N.Y.S.2d 360, 729 N.E.2d 1159;  People v. Green, 240 A.D.2d 513, 658 N.Y.S.2d 133, lv. denied 90 N.Y.2d 940, 664 N.Y.S.2d 758, 687 N.E.2d 655).   Defendant failed to preserve for our review his contention that the evidence of serious physical injury is legally insufficient to support the conviction of assault under Penal Law § 120. 08 (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), and we conclude that the sentence is not unduly harsh or severe.   Defendant failed to preserve his remaining contentions for our review (see CPL 470.05 [2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: