| People v Martinez |
| 2007 NY Slip Op 07219 [43 AD3d 1408] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ChristopherMartinez, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered March17, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, assault in the first degree, and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by directing that the sentence imposed for criminal possessionof a weapon in the second degree shall run concurrently with the sentences imposed on countsone and three of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), assault in the first degree (§120.10 [1]), and criminal possession of a weapon in the second degree (§ 265.03 [2]).Defendant failed to preserve for our review his contention that the People improperly impeacheda prosecution witness (see People v Willis, 303 AD2d 936 [2003], lv denied 100NY2d 544 [2003]; People v Marzug, 280 AD2d 974, 974-975 [2001], lv denied96 NY2d 904 [2001]), and we decline to exercise our power to review that contention as a matterof discretion in the interest of justice (see Marzug, 280 AD2d at 974-975).
We further conclude that County Court properly denied defendant's motion to set aside theverdict based on ineffective assistance of counsel. The record does not support defendant'scontention that defense counsel was using drugs during the trial, and the remaining contentionsof defendant concerning ineffective assistance of counsel are based on his disagreements withdefense counsel's trial strategies. Defendant has failed to meet his burden of establishing theabsence of any legitimate explanation for those strategies (see People v Benevento, 91NY2d 708, 712-713 [1998]; People v Dennis, 206 AD2d 843 [1994], lv denied84 NY2d 867 [1994]; see also People v Flores, 84 NY2d 184, 187 [1994]). Based on"the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the timeof the representation," we conclude that defendant received meaningful representation(People v Baldi, 54 NY2d 137, 147 [1981]).
As the People correctly concede, however, the court erred in directing that the sentenceimposed for criminal possession of a weapon in the second degree shall run consecutively to the[*2]sentences imposed for murder in the second degree andassault in the first degree under counts one and three of the indictment, respectively. Wetherefore modify the judgment accordingly. Although the record supports the jury's finding thatdefendant possessed the weapon illegally, there is no evidence of his intent to use it unlawfullyagainst another person until such time as he used it against the two victims (see People v Hamilton, 4 NY3d654, 658-659 [2005]; cf. People v Salcedo, 92 NY2d 1019, 1021-1022 [1998]), andthus the sentence imposed for criminal possession of a weapon in the second degree must runconcurrently with the sentences imposed for the two remaining counts. We further conclude,however, that the court properly directed that the sentence imposed for assault in the first degreeshall run consecutively to the sentence imposed for murder in the second degree, and that thesentence, as modified, is not unduly harsh or severe. We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Hurlbutt, J.P., Martoche,Smith, Fahey and Pine, JJ.