| People v Serrano |
| 2010 NY Slip Op 05435 [74 AD3d 1104] |
| June 15, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Serrano, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (J. Doyle, J.),rendered March 28, 2008, convicting him of arson in the second degree, attempted murder in thesecond degree, assault in the first degree (three counts), and burglary in the third degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the defendant's conviction of assault in the first degree under count four of theindictment to attempted assault in the first degree, and vacating the sentence imposed thereon; asso modified, the judgment is affirmed, and the matter is remitted to the County Court, SuffolkCounty, for sentencing on the conviction of attempted assault in the first degree.
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 beyond areasonable doubt that the defendant was the individual who attacked the complainant with ascrewdriver and threw an incendiary device into the complainant's van, and that in so doing heacted with the requisite intent to commit attempted murder in the second degree (see People v Dehaarte, 65 AD3d593 [2009]; People v John, 51AD3d 819, 820 [2008]; People vSoto, 8 AD3d 683, 684 [2004]; People v Gardella, 5 AD3d 695 [2004]). Moreover, upon theexercise of our independent factual review power pursuant to CPL 470.15 (5), we are satisfiedthat the verdict of guilt on the charges of arson in the second degree, attempted murder in thesecond degree, and assault in the first degree under counts one and five of the indictment was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the evidence was legally insufficient to support hisconviction of assault in the first degree under count four of the indictment, which is predicatedon the theory that the defendant intentionally caused serious physical injury to the complainantby means of a dangerous instrument, is unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]). However, upon reviewing this contention in the interest of justice(see CPL 470.10 [2]; People vWingate, 70 AD3d 734 [2010]; People v Gilford, 65 AD3d 840, 841 [2009]), we find that theevidence was legally insufficient to establish the defendant's guilt of assault in the first degreeunder count four because the complainant did not suffer a "serious physical injury" as a result ofthe screwdriver attack (see Penal Law[*2]§ 10.00[10]; People v Ham, 67 AD3d1038, 1039-1040 [2009]; People v Gilford, 65 AD3d at 841; People v Clark, 42 AD3d 957,958 [2007]; People v Alvarez, 38AD3d 930, 934 [2007]; People vGray, 30 AD3d 771, 772-773 [2006]; People v Flores, 276 AD2d 710, 711[2000]). Nevertheless, the evidence presented at trial established beyond a reasonable doubt thatthe defendant, who repeatedly struck the complainant with the screwdriver before throwing anincendiary device into his van and severely burning him, acted with the intent to inflict seriousphysical injury. Accordingly, we modify the judgment by reducing the defendant's convictionunder count four of the indictment from assault in the first degree to attempted assault in the firstdegree (see CPL 470.15 [2] [a]; People v Ham, 67 AD3d at 1040; People vGilford, 65 AD3d at 841; People v Alvarez, 38 AD3d at 934-935; People vGray, 30 AD3d at 773; People v Darrow, 260 AD2d 928, 930-931 [1999]).
We reject the defendant's further contention that the County Court erred in refusing tosubmit assault in the second degree as a lesser-included offense under count four of theindictment. Viewing the evidence in the light most favorable to the defendant, there is noreasonable view of the evidence that he merely intended to cause physical injury to thecomplainant (see People v Prince,51 AD3d 1052, 1054-1055 [2008]; People v Vasquez, 25 AD3d 465, 466 [2006]; People vCruz, 298 AD2d 174, 175 [2002]). Since the County Court properly declined to submitassault in the second degree as a lesser-included offense under count four, we are not constrainedto order a new trial on that count of the indictment, and in the interest of justice, we reduce thedefendant's conviction under count four to the lesser-included offense of attempted assault in thefirst degree (see CPL 470.15 [2] [a]).
The defendant's contention that the County Court erred in permitting a police detective whowas an expert in fire investigation to give testimony implying that the subject fire wasintentionally set is unpreserved for appellate review (see CPL 470.05 [2]; People v El Machiah, 71 AD3d914 [2010]; People v Maldonado, 157 AD2d 674 [1990]). In any event, the evidenceof the defendant's guilt of arson in the second degree, without reference to the alleged error, wasoverwhelming, and there is no significant probability that the alleged error might havecontributed to the defendant's conviction of this offense. Thus, any error was harmless (seePeople v Crimmins, 36 NY2d 230, 237 [1975]; People v El Machiah, 71 AD3d 914 [2010]; People v Haughey, 67 AD3d 928[2009]; People v Goldberg, 215 AD2d 402, 403 [1995]).
The defendant also failed to preserve for appellate review his claim that several policewitnesses were improperly permitted to identify him as the individual depicted on a surveillancevideotape of the delicatessen he was convicted of burglarizing, and to describe the conduct seenon the videotape (see CPL 470.05 [2]; People v Kelly, 67 AD3d 706 [2009]). In any event, the claim iswithout merit (see People v Russell, 165 AD2d 327, 332 [1991], affd 79 NY2d1024, 1025 [1992]; People v Rivera, 259 AD2d 316, 317 [1999]; People vMorgan, 214 AD2d 809, 810 [1995]).
Although the County Court should have granted the defendant's motion to sever the burglarycount of the indictment from the counts arising from the screwdriver attack and arson(see CPL 200.20 [2]), the error was harmless in light of the overwhelming evidence ofthe defendant's guilt and the lack of any prejudice to the defendant as a result of the joint trial (see People v Singson, 40 AD3d1015, 1016 [2007]; People vOrtiz, 23 AD3d 499, 500 [2005]; People v Jones, 301 AD2d 678, 680 [2003]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Covello, J.P., Dickerson, Eng and Austin, JJ., concur.