| People v Smoke |
| 2007 NY Slip Op 07135 [43 AD3d 1332] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffrey P.Smoke, Jr., Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (Kevin T. Finnell of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedSeptember 6, 2005. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree and conspiracy in the fourth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the second degree (Penal Law § 120.05 [2]) and conspiracy in the fourth degree(§ 105.10 [1]). We reject the contention of defendant that County Court erred in denyinghis motion to dismiss the indictment. Contrary to the contention of defendant, the People did notviolate the notice provision of CPL 190.50 (5) (a) inasmuch as he was never arraigned in a localcriminal court on the felony complaint. We agree with the court that "[t]here is nothing in therecord to support defendant's [contention] that the People intentionally delayed the arraignmentin order to obtain an indictment without notifying defendant of the [g]rand [j]ury proceeding"(People v Jones, 281 AD2d 185, 186 [2001], lv denied 96 NY2d 831 [2001]).Defendant further contends that the conviction is not supported by legally sufficient evidencebecause the People failed to establish that he intended to cause physical injury and that hecommunicated with his coconspirators. We reject that contention (see generally People vBleakley, 69 NY2d 490, 495 [1987]). The People established that the victim was attacked byfive assailants brandishing various objects, including a baseball bat, hockey stick, and golf club,and the victim identified defendant as one of the assailants who struck him with an object (see People v Tedesco, 30 AD3d1075, 1076 [2006], lv denied 7 NY3d 818 [2006]). Further, the communication ofdefendant with his coconspirators "could be readily inferred from the evidence" (People vSerra, 293 AD2d 338 [2002], lv denied 98 NY2d 681 [2002]). We also rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that he was deprived of a fairtrial by prosecutorial misconduct on summation (see People v Smith, 32 AD3d 1291, 1292 [2006], lv denied8 NY3d 849 [2007]). In any event, the prosecutor's remarks were fair response to defensecounsel's summation (see id.). The sentence is not unduly harsh or severe. We note,however, [*2]that the certificate of conviction incorrectly reflectsthat defendant was sentenced to a five-year period of postrelease supervision, and it musttherefore be amended to reflect that he was sentenced to a three-year period of postreleasesupervision (see Penal Law former § 70.45 [2]; see also People v Saxton, 32 AD3d 1286 [2006]).Present—Gorski, J.P., Smith, Centra, Fahey and Pine, JJ.