| People v Martinez |
| 2010 NY Slip Op 03979 [73 AD3d 1432] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SamuelMartinez, Appellant. |
—[*1]
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered March28, 2008. The judgment convicted defendant, upon a jury verdict, of attempted murder in thesecond degree and assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) andassault in the first degree (§ 120.10 [1]). Viewing the evidence in light of the elements ofthe crimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Defendant further contends that the evidence is legally insufficient to supportthe conviction because his intoxication precluded him from forming the requisite intent tocommit the crimes. Although defendant correctly concedes that he failed to preserve thatcontention for our review inasmuch as he made only a general motion for a trial order ofdismissal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Lamica, 53 AD3d 1109[2008], lv denied 11 NY3d 833 [2008]), he contends that he thereby was denied effectiveassistance of counsel. We reject that contention because defendant failed to demonstrate that his"contention [with respect to the legal sufficiency of the evidence] would be meritorious upon[our] review" (People v Bassett, 55AD3d 1434, 1438 [2008], lv denied 11 NY3d 922 [2009]). "Although there wasevidence at trial that defendant consumed a significant quantity of alcohol on the night of theincident, [a]n intoxicated person can form the requisite criminal intent to commit a crime, and itis for the trier of fact to decide if the extent of the intoxication acted to negate the element ofintent" (People v Mateo, 70 AD3d1331 [2010] [internal quotation marks omitted]). Viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we concludethat a rational trier of fact could find that defendant had the requisite intent to commit the crimesof which he was convicted (see Peoplev Hunter, 70 AD3d 1388 [2010]).
We further conclude that defendant was not denied effective assistance of counsel based onthe failure of defense counsel to object to certain photographs admitted in evidence and hisalleged failure to prepare for trial adequately. "[T]he record, viewed as a whole, reflects thatdefense counsel provided meaningful representation" (People v Daniels, 68 AD3d 1711, 1712 [2009]; [*2]see generally People v Baldi, 54 NY2d 137, 147 [1981]).Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Peradotto,Lindley and Gorski, JJ.