| People v Ragguete |
| 2014 NY Slip Op 05901 [120 AD3d 717] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Enos Ragguete, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure and Jessica M. McNamara ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and SethM. Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(D'Emic, J.), rendered February 18, 2010, convicting him of assault in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the defendant's conviction of assault in the first degree to attemptedassault in the first degree, and by vacating the sentence imposed thereon; as so modified,the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County,for sentencing on the conviction of attempted assault in the first degree.
The defendant's contention that the evidence was legally insufficient to support hisconviction of assault in the first degree is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19[1995]). However, upon reviewing this contention in the interest of justice (seeCPL 470.10 [2]; People vWingate, 70 AD3d 734 [2010]; People v Gilford, 65 AD3d 840, 841 [2009], affd16 NY3d 864 [2011]), we find that the evidence, viewed in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), was legallyinsufficient to establish the defendant's guilt of assault in the first degree because thecomplainant did not suffer a "serious physical injury" as a result of the attack by thedefendant (Penal Law §§ 120.10 [1]; 10.00 [10]; see People v Ham, 67 AD3d1038, 1039-1040 [2009]; People v Gilford, 65 AD3d at 841; People v Clark, 42 AD3d957, 958 [2007]; People vGray, 30 AD3d 771, 772-773 [2006]). The prosecution failed to demonstratebeyond a reasonable doubt either that the complainant suffered serious and protracteddisfigurement (see People vStewart, 18 NY3d 831 [2011]; People v McKinnon, 15 NY3d 311 [2010]), or that apulmonary embolism which she experienced subsequent to the incident was caused bythe defendant's actions. Nevertheless, the evidence presented at trial established beyond areasonable doubt that the defendant, who threatened to kill the complainant and whostabbed and slashed her repeatedly with a knife until she lost consciousness, acted withthe intent to inflict serious physical injury and came "dangerously near" to committingthe completed crime (People v Kassebaum, 95 NY2d 611, 618 [2001]; see People v Mazariego, 117AD3d 1082 [2014]). Accordingly, we modify the judgment by reducing thedefendant's conviction of assault in the first degree to attempted assault in the first [*2]degree, and we remit the matter to the Supreme Court forsentencing on the conviction of attempted assault in the first degree (see People v Madera, 103AD3d 1197, 1198-1199 [2013]; People v Brown, 100 AD3d 1035, 1036 [2012]; People v Serrano, 74 AD3d1104, 1106 [2010]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record and, thus, constitutes a " 'mixed claim[ ]' " of ineffectiveassistance (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d571, 575 n 2 [2011]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824, 825 [1981]; People v Brown, 45 NY2d 852,853-854 [1978]). Since the defendant's claim of ineffective assistance of counsel cannotbe resolved without reference to matter outside the record, a CPL 440.10 proceeding isthe appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at 1109). Mastro, J.P.,Dickerson, Hinds-Radix and Duffy, JJ., concur.