| People v Madera |
| 2013 NY Slip Op 00812 [103 AD3d 1197] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AlexisMadera, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered January 10, 2011. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the conviction ofassault in the first degree under the first count of the indictment to attempted assault inthe first degree (Penal Law §§ 110.00, 120.10 [1]) and vacating the sentenceimposed on that count and as modified the judgment is affirmed, and the matter isremitted to Supreme Court, Monroe County, for sentencing on that conviction.
Memorandum: On appeal from a judgment convicting him following a jury trial ofassault in the first degree (Penal Law § 120.10 [1]) and assault in the seconddegree (§ 120.05 [2]), defendant contends that the evidence of serious physicalinjury is legally insufficient to support the conviction of assault in the first degree.Although defendant failed to preserve that contention for our review (see People vGray, 86 NY2d 10, 19 [1995]), we nevertheless exercise our power to address thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). A person is guilty of assault in the first degree when, inter alia, he or she, with intentto cause serious physical injury to another person, causes such injury to that person or toanother person by means of a deadly weapon or a dangerous instrument (Penal Law§ 120.10 [1]). We agree with defendant that the evidence is legally insufficient toestablish the element of serious physical injury (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Serious physical injury, as defined in the Penal Law, "meansphysical injury which creates a substantial risk of death, or which causes death or seriousand protracted disfigurement, protracted impairment of health or protracted loss orimpairment of the function of any bodily organ" (§ 10.00 [10]). The Peoplecorrectly concede that there was no evidence that the victim sustained serious andprotracted disfigurement, protracted impairment of health or protracted loss orimpairment of the function of any bodily organ. They contend, however, that the victim'sinjuries created a substantial risk of death (see id.). We reject that contention.
The evidence at trial concerning the victim's injury consisted of the victim'stestimony [*2]and medical records. That evidenceestablished that the bullet entered and exited the victim's body around his right nipple; itwas not near any vital organs; and it grazed the victim's right arm either as it entered orexited his body. Although a tiny fragment of the bullet remained in the victim's chest, thePeople presented no medical testimony to explain what, if any, risk that fragment posedto the victim. No sutures were needed and the victim's self-reported pain level was low.The victim was kept in the hospital overnight for pain management and observation, buthe remained in the hospital for another day due to his expressed intent to retaliate againstdefendant.
Viewing that evidence in the light most favorable to the People, we conclude that no" 'rational trier of fact could have found the essential elements of the crime beyond areasonable doubt' " (People v Contes, 60 NY2d 620, 621 [1983]). The Peoplepresented no evidence establishing that the victim faced a substantial risk of death (see e.g. People v Nimmons, 95AD3d 1360, 1360-1361 [2012], lv denied 19 NY3d 1028 [2012]; People v Tucker, 91 AD3d1030, 1031-1032 [2012], lv denied 19 NY3d 1002 [2012]; People v Ham, 67 AD3d1038, 1039-1040 [2009]; People v Gray, 30 AD3d 771, 773 [2006], lvdenied 7 NY3d 848 [2006]). Nevertheless, we conclude that the evidence is legallysufficient to establish that defendant committed the lesser included offense of attemptedassault in the first degree, "namely that defendant intended to cause serious physicalinjury to the victim by means of a deadly weapon and engaged in conduct that tended toeffect the commission of the crime of assault in the first degree" (Gray, 30 AD3dat 773; see Penal Law §§ 110.00, 120.10 [1]; People vPross, 302 AD2d 895, 897 [2003], lv denied 99 NY2d 657 [2003]). Wetherefore modify the judgment by reducing the conviction of assault in the first degree tothat lesser included offense, and we remit the matter to Supreme Court for sentencing onthat conviction (see CPL 470.15 [2] [a]; 470.20 [4]; Pross, 302 AD2d at897).
Although defendant further contends that the evidence before the grand jury waslegally insufficient to support the indictment on the count of assault in the first degree, hefailed to preserve that contention for our review inasmuch as his "omnibus motion. . . failed to set forth the specific grounds for dismissal now set forth onappeal, i.e., that the evidence was insufficient to establish . . . the element of[serious physical injury]" (People v Agee, 57 AD3d 1486, 1487 [2008], lvdenied 12 NY3d 813 [2009]; see People v Becoats, 71 AD3d 1578, 1579 [2010],affd 17 NY3d 643 [2011], cert denied 566 US —, 132 S Ct 1970[2012]; People v Cobb, 72AD3d 1565, 1565-1566 [2010], lv denied 15 NY3d 803 [2010]). We declineto exercise our power to address that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Based on our determination that the trialevidence is legally insufficient to support the charge of assault in the first degree, we donot address defendant's remaining contentions concerning the conviction of that count ofthe indictment.
Although defendant further contends that he was denied a fair trial based onprosecutorial misconduct during summation, that contention is not preserved for ourreview because defendant failed to object to the allegedly improper comments duringsummation (see People v Balls, 69 NY2d 641, 642 [1986]; People v Sulli, 81 AD3d1309, 1311 [2011], lv denied 17 NY3d 802 [2011]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Defendant contends that the court erred at trial in allowing the People to presentevidence concerning a confrontation between defendant and one victim that occurred theday before the instant shooting. In addition, defendant contends that the court erred infailing, sua sponte, to give the jury an appropriate limiting instruction. Defendant,however, failed to preserve either contention for our review (see People v Hunt, 74 AD3d1741, 1742 [2010], lv denied 15 NY3d 806 [2010]; People v Francis, 63 AD3d1644, 1645 [2009], lv denied 13 NY3d 835 [2009]; see also People v Allen, 93AD3d 1144, 1146 [2012], lv denied 19 NY3d 956 [2012]; People vMoore [appeal No. 2], 78 AD3d 1658, 1659 [2010]). In any event, defendant'scontentions lack merit. The challenged evidence "was [*3]probative of [defendant's] motive and intent to assault hisvictim; it provided necessary background information on the nature of the relationshipand placed the charged conduct in context" (People v Dorm, 12 NY3d 16, 19 [2009]; see generallyPeople v Alvino, 71 NY2d 233, 241-242 [1987]). "Although it would have beenbetter practice to caution the jury on the limited purpose for which the evidence wasadmitted, both at the time it was introduced and again during the charge, the defendantdid not request a limiting instruction when the testimony was admitted, and the courtadequately instructed the jury as to its limited purpose in the charge" (People v KaeKim, 218 AD2d 815, 815-816 [1995], lv denied 87 NY2d 847 [1995]).
We reject the additional contention of defendant that he was denied effectiveassistance of counsel based on defense counsel's failure to preserve defendant'scontentions for our review. Viewing the evidence, the law, and the circumstances of thiscase in totality and as of the time of the representation, we conclude that defense counselprovided meaningful representation (see generally People v Baldi, 54 NY2d 137,147 [1981]). Finally, the sentence imposed on the conviction of assault in the seconddegree with respect to a second victim is not unduly harsh or severe.Present—Scudder, P.J., Centra, Carni, Lindley and Sconiers, JJ.