| People v Grant |
| 2010 NY Slip Op 04408 [73 AD3d 1079] |
| May 18, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Grant, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman,and Jill Oziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered May 21, 2008, convicting him of attempted assault in the second degree as a hate crime(two counts) and menacing in the second degree as a hate crime, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, and the facts, by vacating the convictionof attempted assault in the second degree as a hate crime under count two of the indictment,vacating the sentence imposed thereon, and dismissing that count of the indictment; as somodified, the judgment is affirmed.
As the defendant contends, and the People correctly concede, the crime of attempted assaultin the second degree under Penal Law § 120.05 (3) is "a legal impossibility" (People vCampbell, 72 NY2d 602, 607 [1988]; see People v Wyrich, 259 AD2d 718 [1999];People v Daniels, 237 AD2d 298 [1997]). Therefore, the defendant's conviction ofattempted assault in the second degree as a hate crime, under count two of the indictment, mustbe vacated, and that count of the indictment must be dismissed.
We reject the defendant's contention that the evidence of his intent to injure the victim waslegally insufficient and that the jury finding of such intent was against the weight of theevidence. Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's intent to injure the victim beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record, we are satisfied that the jury's finding that thedefendant intended to injure the victim is not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).[*2]
The defendant's contention that the prosecutor violatedthe terms of the modified Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]) is unpreserved for appellate review (see CPL 470.05 [2]), and, in any event, iswithout merit (see People v Fardan, 82 NY2d 638, 646 [1993]).
The sentence imposed is not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Fisher, J.P., Florio, Belen and Austin,JJ., concur.