| People v Simcoe |
| 2010 NY Slip Op 05930 [75 AD3d 1107] |
| July 2, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas B.Simcoe, Appellant. |
—[*1] Thomas B. Simcoe, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedDecember 19, 2008. The judgment convicted defendant, upon a nonjury verdict, of attemptedmurder in the first degree, attempted murder in the second degree, attempted assault in the firstdegree (three counts), assault in the second degree (two counts), assault in the third degree,criminal possession of a weapon in the fourth degree (two counts) and endangering the welfareof a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of, interalia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), forbeating and choking his wife, and attempted murder in the first degree (§§ 110.00,125.27 [1] [a], [b]), for attempting to stab a police officer who responded to a 911 call fromdefendant's son, defendant contends that the verdict on those two counts is against the weight ofthe evidence. Viewing the evidence in light of the elements of those counts in this nonjury trial(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although a finding thatdefendant did not intend to kill the victims would not have been unreasonable (see generallyid.), it cannot be said that County Court, which saw and heard the witnesses and thus wasable to " 'assess their credibility and reliability in a manner that is far superior to that ofreviewing judges who must rely on the printed record,' " failed to give the evidence the weight itshould be accorded (People vHarris, 72 AD3d 1492, 1492 [2010]). We note that the intent of defendant to kill thevictims may be inferred from his actions (see People v Broadnax, 52 AD3d 1306, 1307 [2008], lv denied11 NY3d 830 [2008]; People vSwitzer, 15 AD3d 913, 914 [2005], lv denied 5 NY3d 770 [2005]). Thoseactions included choking his wife with a rope to the point of rendering her unconscious andfracturing her skull by repeatedly smashing her head on the hardwood floor, and then stabbingthe responding police officer three times in the upper torso area. The fact that the officer wasprotected from injury by a bulletproof vest does not in any way negate defendant's intent to killthe officer, inasmuch as defendant did not know that the officer was so protected. We furthernote that, after smashing his wife's head on the floor and biting off a portion of his wife's lowerlip, defendant yelled to his son, "come [*2]downstairs and seewhat I did to your mother." In addition, defendant refused to allow the police to enter the housedespite the fact that his wife was unconscious and struggling to breathe, thus further jeopardizingher life. Although defendant testified that he did not intend to kill either victim, the court wasfree to reject that self-serving testimony (see generally Harris, 72 AD3d at 1492).
Contrary to the further contention of defendant, he was not denied effective assistance ofcounsel. Defendant failed "to demonstrate the absence of strategic or other legitimateexplanations" for defense counsel's failure to conduct an inquiry into the qualifications of thePeople's expert or to object to certain testimony (People v Rivera, 71 NY2d 705, 709[1988]), and defendant was not otherwise deprived of assistance of counsel by the remainingalleged shortcomings of defense counsel (see generally People v Baldi, 54 NY2d 137,147 [1981]; People v Walker, 50AD3d 1452, 1453 [2008], lv denied 11 NY3d 795 [2008], deniedreconsideration 11 NY3d 931 [2009]). Considering the brutal nature of the crimes, as well asdefendant's lack of remorse and failure to accept responsibility, we conclude that the sentence isnot unduly harsh or severe.
We have reviewed the remaining contentions of defendant in his pro se supplemental briefand conclude that they are unpreserved for our review (see CPL 470.05 [2]), and in anyevent are without merit. Present—Smith, J.P., Fahey, Lindley, Sconiers and Green, JJ.