| People v Starks |
| 2007 NY Slip Op 10304 [46 AD3d 1426] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Malachi J.Starks, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), renderedAugust 17, 2004. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree (two counts), assault in the second degree, attempted robbery in the first degree (twocounts) 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 affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, interalia, two counts of attempted robbery in the first degree (Penal Law §§ 110.00,160.15 [1], [2]) and one count of criminal possession of a weapon in the second degree (§265.03 [former (2)]). Contrary to defendant's contention, the evidence is legally sufficient tosupport the conviction of attempted robbery (see generally People v Bleakley, 69 NY2d490, 495 [1987]). The evidence established that defendant and another individual entered thevictim's store with the intent to steal money that they believed the victim kept there. The victimwas shot almost immediately after defendant entered the store, at which time defendant ran fromthe store. Thus, viewing the evidence in the light most favorable to the People (see People v Calabria, 3 NY3d 80,81-82 [2004]), we conclude that the evidence is legally sufficient to establish that defendant"engage[d] in conduct which tend[ed] to effect" the commission of robbery in the first degree(Penal Law § 110.00; see § 160.15 [1], [2]).
We reject the further contention of defendant that County Court erred in refusing to suppresshis statement to the police. Contrary to the contention of defendant, his right to counsel did notattach when he requested permission to speak to his girlfriend, a paralegal who was beinginterviewed by police at the time of defendant's request. "Counsel, as the word is used in theSixth Amendment can mean nothing less than a licensed attorney at law" (People vFelder, 47 NY2d 287, 293 [1979]). We thus conclude that defendant did not unequivocallyassert his right to counsel prior to making the statement (see People v Glover, 87 NY2d838, 839 [1995]; People v Twillie,28 AD3d 1236, 1237 [2006], lv denied 7 NY3d 795 [2006]). Finally, the sentence isnot unduly harsh or severe. Present—Scudder, P.J., Smith, Centra, Lunn and Peradotto, JJ.