PEOPLE v. CARMONA (2006)

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 13, 2004, convicting him of attempted assault on a police officer (two counts), assault in the second degree, operating a motor vehicle while under the influence of alcohol, aggravated unlicensed operation of a motor vehicle in the first degree, resisting arrest, obstructing governmental administration in the second degree, and disorderly conduct (two counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of attempted assault on a police officer, vacating the sentences imposed thereon, and dismissing those counts of the indictment;  as so modified, the judgment is affirmed.

As the People correctly concede, the attempt to assault a police officer is a legal impossibility (see Penal Law §§ 110.00, 120.08;  People v. Campbell, 72 N.Y.2d 602, 607, 535 N.Y.S.2d 580, 532 N.E.2d 86;  People v. Graham, 302 A.D.2d 984, 985, 755 N.Y.S.2d 353).   Accordingly, the defendant's convictions of attempted assault of a police officer under Penal Law §§ 110.00 and 120.08 must be vacated.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of two counts of disorderly conduct (see Penal Law § 240.20 [1], [3] ).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The defendant's remaining contentions have been rendered academic.