PEOPLE v. IBARRA

Defendant failed to preserve his challenge to the sufficiency of the evidence supporting the element of use of a dangerous instrument under his attempted assault conviction, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the evidence supports the inference of defendant's awareness of the danger posed by the electrified third rail of the subway, regardless of its particular location in relation to the platform, as well as the inference that defendant intended to use the third rail for the purpose of causing serious physical injury to the person he attempted to shove onto the tracks.

We perceive no abuse of sentencing discretion.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.