Ordered that the judgment is modified, on the law, by vacating the conviction for assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
To sustain a conviction for assault in the second degree pursuant to Penal Law § 120.05 (3) there must be proof beyond a reasonable doubt that the defendant "[w]ith intent to prevent a * * * police officer * * * from performing...
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