| People v March |
| 2011 NY Slip Op 08391 [89 AD3d 1496] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Adrienne March,Also Known as Vanessa Gregg, Appellant. |
—[*1] Adrienne March, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Shirley Troutman, A.J.), renderedDecember 21, 2009. The judgment convicted defendant, upon a jury verdict, of attempted murder inthe first degree (two counts), assault in the first degree (two counts) and criminal possession of aweapon in the second degree, and, upon her plea of guilty, of attempted forgery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byvacating the sentences imposed for the two counts of attempted murder in the first degree and asmodified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, forresentencing on counts one and two of the indictment.
Memorandum: Defendant was convicted upon a jury verdict of, inter alia, two counts each ofattempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [viii]; [b]) andassault in the first degree (§ 120.10 [1]). Preliminarily, we note that defendant appeals only fromthe judgment rendered on December 18, 2009, which was superseded by the judgment rendered onDecember 21, 2009. Nevertheless, we exercise our discretion, in the interest of justice, and treat thenotice of appeal as valid (see CPL 460.10 [6]; People v Lerario, 50 AD3d 1396 [2008], lv denied 10 NY3d961 [2008]).
Turning to the merits, we reject defendant's contention that she received ineffective assistance ofcounsel based on defense counsel's failure to request that Supreme Court charge assault in the seconddegree (Penal Law § 120.05 [4]) as a lesser included offense of assault in the first degree(§ 120.10 [1]) under count six of the indictment. To the extent that defendant contends thatdefense counsel was ineffective in failing to seek that charge after the jury retired to deliberate, hercontention lacks merit because a request that a lesser included offense be charged must be made beforethe jury has commenced its deliberations or such a request is deemed to be waived (see CPL300.50 [1]; People v Duncan, 46 NY2d 74, 80 [1978], rearg denied 46 NY2d 940[1979], cert denied 442 US 910 [1979], rearg dismissed 56 NY2d 646 [1982]). It iswell settled that "[a] [*2]defendant is not denied effective assistance oftrial counsel [where defense] counsel does not make a motion or argument that has little or no chanceof success" (People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Crump, 77 AD3d 1335, 1336 [2010], lv denied16 NY3d 857 [2011]).
Likewise, we reject defendant's contention that she was denied effective assistance of counselbased on defense counsel's failure to request, before the jury retired to deliberate, that the foregoinglesser included offense be charged. "[D]efendant failed to show the absence of a strategic explanationfor defense counsel's" failure to request the charge (People v Mendez, 77 AD3d 1312, 1312-1313 [2010], lv denied16 NY3d 799 [2011]; see People v Benevento, 91 NY2d 708, 712 [1998]), and "meredisagreement with trial strategy is insufficient to establish that defense counsel was ineffective" (People v Henry, 74 AD3d 1860, 1862[2010], lv denied 15 NY3d 852 [2010]).
Although we conclude that the sentence is not unduly harsh or severe, we conclude that theconsecutive sentences imposed for attempted murder in the first degree under counts one and two areillegal, and that instead the sentences on those counts must be directed to run concurrently (see People v Rosas, 8 NY3d 493, 498[2007]; People v Jackson, 41 AD3d1268, 1270 [2007], lv denied 10 NY3d 812 [2008], reconsideration denied 11NY3d 789 [2008]). "A [c]onsecutive sentence is available if the Legislature has seen fit to provide thatup to a particular point the acts of the defendant constitute one crime and that the acts of the defendant,committed thereafter, constitute a second crime and that each series of acts constitut[e] a separatecrime . . . Here, by contrast, the same acts constitute both crimes. In other words, thesame actus reus—the intentional murder of the same two victims—is the basis for bothfirst degree murder convictions" (Rosas, 8 NY3d at 498 [internal quotation marks omitted];see Penal Law § 70.25 [2]). The fact that defendant failed to preserve the issue of theillegality of the sentences on those counts for our review is of no moment, inasmuch as we cannot allowan illegal sentence to stand despite the lack of preservation (see People v Yuson, 83 AD3d 1502 [2011]). Consequently, we modifythe judgment by vacating the sentences imposed for attempted murder in the first degree, and we remitto Supreme Court for resentencing on counts one and two of the indictment.
Defendant's remaining contentions are raised in her pro se supplemental brief. Defendant contendsthat the parts of the judgment convicting her of assault in the first degree (Penal Law § 120.10[1]) under counts five and six of the indictment must be reversed, and those counts dismissed, becauseassault in the first degree is a lesser included offense of attempted murder in the first degree(§§ 110.00, 125.27 [1] [a] [viii]; [b]). We reject that contention (see generally Peoplev Glover, 57 NY2d 61, 64 [1982]). We also reject defendant's contention that she receivedineffective assistance of counsel based on defense counsel's failure to request that attemptedmanslaughter in the first degree be submitted as a lesser included offense of attempted murder in thefirst degree. Viewing the evidence in the light most favorable to defendant (see People vMartin, 59 NY2d 704, 705 [1983]; People v Albanna, 23 AD3d 1004, 1005 [2005]), there is no reasonableview thereof to support a finding that defendant committed the lesser offense but not the greater(see generally Glover, 57 NY2d at 63). Thus, as previously noted, it cannot be said thatdefendant was denied effective assistance of counsel in the event that defense counsel does not make amotion or argument that has little or no chance of success (see Stultz, 2 NY3d at 287;Crump, 77 AD3d at 1336). In addition, viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it is legallysufficient to support the intent elements of the attempted murder and assault crimes of which defendantwas convicted (see People v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Green, 74 AD3d1899, 1900 [2010], lv denied 15 NY3d 852 [2010]; People v Flecha, 43 AD3d 1385, 1386 [2007], lv denied 9NY3d 990 [2007]).
Finally, we have reviewed defendant's two remaining contentions in her pro se supplemental briefand conclude that neither warrants further modification or reversal of the [*3]judgment. Present—Centra, J.P., Fahey, Sconiers, Green andMartoche, JJ.