| People v Stroud |
| 2012 NY Slip Op 00134 [91 AD3d 1026] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Carl D.Stroud, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.
Mercure, A.P.J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered December 14, 2009, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the third degree and menacing in the first degree (two counts).
Defendant became embroiled in a violent encounter with Bonnie Rivenburg and ErnestRivenburg, a married couple, who were moving his former girlfriend out of the apartment sheshared with him. Defendant attacked Ernest Rivenburg in the front yard of the building and, inthe ensuing fight, brandished a knife and threatened to "gut [him] right where [he] stood." Afterthe two men separated, defendant approached Bonnie Rivenburg, waving the knife in athreatening manner as he did so. When she was unimpressed by the display, defendant wentinside the building and then re-emerged with a handgun, which he pointed at her head. Thepolice had been called by that time, however, and defendant fled when he heard the approachingsirens.
Defendant was thereafter apprehended and charged in a five-count indictment with variousoffenses. Following a jury trial, he was convicted of criminal possession of a weapon in the thirddegree and two counts of menacing in the first degree. County Court imposed an aggregateprison sentence of 4½ to 9 years, and defendant appeals.[*2]
We affirm. Defendant initially argues that the evidencewas insufficient to support his conviction upon the menacing count based upon his display of theknife to Bonnie Rivenburg. He failed to make a factually specific motion to dismiss that count ofthe indictment at trial and, thus, his challenge to the legal sufficiency of the evidence presented isunpreserved (see People v Danford,88 AD3d 1064, 1065 [2011]). Moreover, reversal in the interest of justice is not requiredinasmuch as, contrary to defendant's contention, the People were not required to show that heactually instilled a reasonable fear of physical injury in Bonnie Rivenburg; rather, an intentionalattempt to do so would suffice (see Penal Law §§ 120.13, 120.14 [1]). Inthat regard, she testified that defendant "came at" her with a "crazed" expression and madecutting gestures with the knife, and the jury could readily determine that defendant intentionallyattempted to place her in reasonable fear of physical injury by doing so (see People v Bryant, 13 AD3d1170, 1171 [2004], lv denied 4 NY3d 884 [2005]; People v Baum, 143AD2d 1024, 1024 [1988], lv denied 73 NY2d 919 [1989]).
Defendant next contends that counsel was ineffective in failing to timely argue that the jury'sverdict convicting him of criminal possession of a weapon in the third degree while acquittinghim of attempted assault in the first degree was repugnant. A defendant will not be permitted tosecond-guess a legitimate trial strategy, however, and counsel's failure to raise the issue prior tothe jury's discharge may well have been motivated by concern that resubmitting the matter to thejury would result in guilty verdicts being returned on both counts (see People v Bartlett, 89 AD3d1453, 1454 [2011]; People vPerry, 27 AD3d 952, 953 [2006], lv denied 8 NY3d 883 [2007]). In any event,"no inconsistency [exists] between acquittal on assault charges and conviction for weaponspossession," given the differing results that must be intended to commit those crimes (Peoplev Rust, 233 AD2d 778, 780 [1996], lv denied 89 NY2d 988 [1997]; see People vHart, 266 AD2d 584, 585 [1999], lv denied 94 NY2d 903 [2000]; see also People v Baker, 14 NY3d266, 270-272 [2010]; People vCarter, 7 NY3d 875, 876-877 [2006]).
As a final matter, defendant's menacing convictions arose from acts separate and distinctfrom those underlying his weapons possession conviction, and County Court was thus free toimpose consecutive sentences thereon (see People v McKnight, 16 NY3d 43, 48 [2010]; People v Rouse, 4 AD3d 553, 557[2004], lv denied 2 NY3d 805 [2004]).
Peters, Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.