PEOPLE v. SPILLMAN (2008)

Appeal by the defendant from a judgment of the County Court, Westchester County (Cohen, J.), rendered April 3, 2007, as amended April 6, 2007, convicting him of assault in the second degree, resisting arrest, and littering in public, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

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), the evidence was legally sufficient to establish beyond a reasonable doubt the defendant's guilt of assault in the second degree (Penal Law § 120.05[3] ), and resisting arrest (Penal Law § 205.30;  see People v. Riccobono, 282 A.D.2d 552, 552-553, 722 N.Y.S.2d 752;  People v. Coulanges, 264 A.D.2d 853, 853, 696 N.Y.S.2d 466).   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant failed to preserve for appellate review his contention that the Supreme Court erred in charging the jury on Penal Law § 35.27 (the “no-sock law”) immediately after charging the jury on resisting arrest (see People v. Basora, 75 N.Y.2d 992, 994, 557 N.Y.S.2d 263, 556 N.E.2d 1070;  People v. Henry, 306 A.D.2d 539, 761 N.Y.S.2d 853;  People v. Slack, 131 A.D.2d 610, 516 N.Y.S.2d 309).   In any event, we note that the defendant requested that the court charge the jury with respect to Penal Law § 35.27.   The court later clarified that the instruction related to the justification defense.   Moreover, the charge did not blur the distinction between authorized and unauthorized arrests or leave the jury with the impression that the defendant would be guilty of resisting an unauthorized arrest if he used force (see People v. Commesso, 184 A.D.2d 719, 721, 585 N.Y.S.2d 80;  cf. People v. Rosa, 277 A.D.2d 506, 507, 715 N.Y.S.2d 514;  People v. Carneglia, 63 A.D.2d 734, 735, 405 N.Y.S.2d 298;  People v. Harewood, 63 A.D.2d 876, 877, 406 N.Y.S.2d 44).

The defendant's remaining contentions are without merit.