| People v Davis |
| 2011 NY Slip Op 03356 [83 AD3d 1492] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AntoineDavis, Appellant. |
—[*1]
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedJanuary 7, 2010. The judgment convicted defendant, upon a nonjury verdict, of attempted assaultin the first degree, endangering the welfare of a child, menacing in the second degree andaggravated harassment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof, inter alia, attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]).Contrary to defendant's contention, his conviction of attempted assault is supported by legallysufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Defendant's conduct of dousing his intended victim in lighter fluid and threatening to burn her"went far beyond mere discussion of a crime . . . and beyond [threatening] tocommit a crime . . . , and even beyond arming [himself] in preparation for a crime"(People v Mahboubian, 74 NY2d 174, 191 [1989]; see generally People vAdams, 222 AD2d 1124 [1995], lv denied 87 NY2d 1016 [1996]; People vJohnson, 186 AD2d 363 [1992], lv denied 81 NY2d 763 [1992]). Viewing theevidence in light of the elements of the crime of attempted assault in the first degree in thisnonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that theverdict with respect to that count is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). We also reject defendant's contention that reversal is warrantedbased upon the court's failure to make a sufficient inquiry whether defendant was aware of thepotential risks associated with defense counsel's prior representation of a prosecution witness andwhether defendant wished to proceed with defense counsel despite any potential conflict (seegenerally People v Gomberg, 38 NY2d 307, 313-314 [1975]). "[D]efendant failed to meethis burden of establishing that 'the conduct of his defense was in fact affected by the operation ofthe conflict of interest' " (People v Smart, 96 NY2d 793, 795 [2001], quoting Peoplev Alicea, 61 NY2d 23, 31 [1983]). Present—Scudder, P.J., Centra, Sconiers, Gorskiand Martoche, JJ.