The People of the State of New York, Respondent, v. Robert Spencer, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Robert Spencer, Defendant–Appellant.

7809– 7810

Decided: May 31, 2012

Tom, J.P., Andrias, Saxe, Moskowitz, Acosta, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.


Judgment of resentence, Supreme Court, New York County (Michael R. Sonberg, J.), rendered July 26, 2011, resentencing defendant upon his conviction, after a jury trial, of two counts of assault in the second degree, and one count each of obstructing governmental administration in the second degree and promoting prostitution in the fourth degree, to an aggregate term of five years, unanimously affirmed.   Appeal from judgment, same court and Justice, rendered May 18, 2010, unanimously dismissed, as superceded by the appeal from the judgment rendered July 26, 2011.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 349 [2007] ).   The testimony of the undercover officer that defendant offered the services of prostitutes established his commission of the crime of promoting prostitution in the fourth degree (see People v. Brown, 74 AD3d 1748 [2010], lv denied 15 NY3d 802 [2010];  Penal Law § 230.20[1] ).   There is no basis to disturb the jury's determination to credit the testimony of the officer.

Moreover, since the officers were performing a lawful duty in arresting defendant, his subsequent actions of violently refusing to be handcuffed or moved from the scene of the incident to the hospital and then to central booking, and causing physical injury to two police officers, established his guilt of assault and obstructing governmental administration.