| People v Bedford |
| 2012 NY Slip Op 04020 [95 AD3d 1226] |
| May 23, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarkBedford, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, andAdam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered January 8, 2009, convicting him of attempted murder in the second degree, criminalpossession of a weapon in the second degree, assault in the third degree, and endangering thewelfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the defendant's conviction ofassault in the third degree under count 14 of the indictment, vacating the sentence imposedthereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guiltwith respect to his convictions of attempted murder in the second degree and criminal possessionof a weapon in the second degree is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt with respect to those crimes beyond a reasonabledoubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied thatthe verdict of guilt with respect to those convictions was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the evidence was legally insufficient to establish his guilt ofassault in the third degree (see Penal Law § 120.00 [1]) is likewise unpreserved forappellate review (see CPL 470.05 [2]). However, we reach this issue in the exercise ofour interest of justice jurisdiction. Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d at 621), we find that it was legallyinsufficient to establish, beyond a reasonable doubt, that the complainant sustained a "[p]hysicalinjury" within the meaning of Penal Law § 10.00 (9). Accordingly, the defendant'sconviction of assault in the third degree under count 14 of the indictment and the sentenceimposed thereon must be vacated, and that count of the indictment dismissed.[*2]
The defendant's contention that the Supreme Court erredin permitting his wife to testify about certain observations she made in their home is withoutmerit. The subject testimony involved acts which were not "induced by the marital relation andprompted by the affection, confidence and loyalty engendered by such relationship" (Poppe vPoppe, 3 NY2d 312, 315 [1957]; see People v Mills, 1 NY3d 269, 276 [2003]) and, therefore, wasbeyond the bounds of the marital privilege (see People v Williams, 54 AD3d 886 [2008]; People v Parker, 49 AD3d 974,978 [2008]).
The defendant's contention that trial counsel's failure to preserve certain claims for appellatereview constituted ineffective assistance of counsel is without merit (see People v Erskine, 90 AD3d674, 675 [2011], lv denied 18 NY3d 923 [2012]; People v Greenlee, 70 AD3d 966, 967 [2010]; People v Taberas, 60 AD3d 791,793 [2009]). Angiolillo, J.P., Eng, Lott and Cohen, JJ., concur.