| People v Williams |
| 2007 NY Slip Op 09284 [45 AD3d 1466] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Cory M.Williams, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered November 29, 2004. The judgment convicted defendant, upon a jury verdict, of assaultin the second degree and gang assault in the second 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 [4]) and gang assault in the seconddegree (§ 120.06). Contrary to defendant's contention, there is no evidence in the recordthat, prior to conducting a suppression hearing, Supreme Court pressured defense counsel towithdraw that part of defendant's omnibus motion seeking suppression of defendant's statementsto the police. Insofar as defendant contends that the court erred in refusing to suppress certainstatements, he failed to preserve that contention for our review inasmuch as he withdrew that partof his omnibus motion seeking that relief (see CPL 470.05 [2]; People v Thousand, 41 AD3d1272 [2007], lv denied 9 NY3d 927 [2007]; see also People v Wallace, 259AD2d 978 [1999], lv denied 93 NY2d 981 [1999]). We further reject the contention ofdefendant that he was denied effective assistance of counsel based on defense counsel'swithdrawal of that part of defendant's omnibus motion seeking to suppress those statements."That failure, 'without more, is insufficient to demonstrate ineffective assistance, particularlywhere[, as here, the] defendant fail[s] to demonstrate an absence of strategic or legitimate reasonsfor [defense] counsel's failure to pursue this course of action' " (People v Hibbard, 27 AD3d 1196,1197 [2006], lv denied 7 NY3d 790 [2006]).
We also reject defendant's contention that the verdict is inconsistent. Although the counts ofassault in the second degree and gang assault in the second degree require different culpablemental states, i.e., reckless as opposed to intentional conduct (see Penal Law §120.05 [4]; § 120.06), each count involved a different result (see People vTrappier, 87 NY2d 55, 59 [1995]). "A defendant could certainly intend one result. . . while recklessly creating a grave risk that a different, more serious result. . . would ensue from his actions" (id.). Here, defendant could haveintended to cause physical injury to the victim by participating in a gang assault and, at the sametime, he could have recklessly created a grave risk that the victim would sustain a serious [*2]physical injury at the hands of a codefendant whom defendant knewto be armed with a knife.
Contrary to defendant's further contention, the court properly admitted evidence of prioruncharged crimes allegedly committed by an individual who was not charged as a codefendant.The evidence was relevant to establish the motive of defendant and his codefendants (seegenerally People v Plummer, 36 NY2d 161, 163-164 [1975]), and defendant failed toestablish that he was prejudiced by the admission of the evidence, particularly in view of thecourt's extensive curative instructions (cf. People v Hemingway, 240 AD2d 328 [1997]).
The sentence is not unduly harsh or severe, nor did the court abuse its discretion in denyingdefendant's request for youthful offender status (see People v Washpun, 41 AD3d 1233 [2007], lv denied 9NY3d 883 [2007]; People v Johnson, 221 AD2d 1016 [1995]). We have considereddefendant's remaining contentions and conclude that they are without merit.Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.