| People v Stanley |
| 2015 NY Slip Op 00792 [124 AD3d 919] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sabu Stanley, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, HowardB. Goodman, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Konviser, J.), rendered December 21, 2009, convicting him of attempted assault in thefirst degree, criminal possession of a weapon in the second degree, and recklessendangerment in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legalsufficiency of the evidence of his guilt of attempted assault in the first degree (seeCPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Garguilio, 57 AD3d797, 798 [2008]). In any event, viewing the evidence in the light most favorable tothe People (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt of attempted assault in the first degree(Penal Law §§ 110.00, 120.10 [1]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdictof guilt with respect to the conviction of attempted assault in the first degree was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Contrary to thedefendant's contention, the evidence does not support a finding that he knew that his gunwould jam at the time he pointed it at a police officer and pulled the trigger. Rather, theevidence demonstrated that the defendant had fired the same weapon minutes earlier intoa crowd, striking one victim, and that the defendant appeared to try to "clear" the gunwhen the trigger did not work the first time he pointed the gun at the police officer.Moreover, the People also introduced evidence at trial that the gun was operable when itwas recovered from the scene. Accordingly, the People presented sufficient evidence ofthe defendant's intent to cause serious physical injury to the police officer by the use ofthe weapon (see People vSantana, 70 AD3d 448 [2010]; People v Bedford, 296 AD2d 553[2002]; People v Francis, 209 AD2d 539, 540 [1994]; see also People vDavis, 72 NY2d 32, 37 [1988]; People v Persaud, 25 AD3d 626, 627 [2006]).
The defendant also failed to preserve for appellate review his challenge to the legal[*2]sufficiency of the evidence of his guilt of recklessendangerment in the first degree (see CPL 470.05 [2]; People v Gray, 86NY2d at 19). In any event, contrary to the defendant's contention, the People adducedlegally sufficient proof of his identity as the perpetrator of the acts that formed the basisfor this conviction (see People v Pena, 242 AD2d 546 [1997]; see also People v Goodman,120 AD3d 587 [2014]; People v Casarrubia, 117 AD3d 1072 [2014]). Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence as to that conviction (see People v Romero, 7 NY3d633 [2006]).
The record, viewed in totality, shows that the defendant was afforded the effectiveassistance of counsel (see People v Benevento, 91 NY2d 708, 712 [1998];People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel's failure to object tothe jury charge as to the count charging criminal possession of a weapon in the seconddegree, on the ground that it was "duplicitous," did not render counsel's performanceineffective. The defendant was charged with criminal possession of a weapon in thesecond degree under Penal Law § 265.03 (3), based on his allegedpossession of a loaded firearm, outside of his home or place of business. The gravamenof that charge was the defendant's alleged continuing possession of a loaded firearm, inan incident that began with him shooting into a crowd, and ended with his encounterwith the police several minutes later. Under these circumstances, that count as submittedto the jury charged a single offense, and there was no risk of a less than unanimousverdict on the offense (seePeople v Thomas, 114 AD3d 1138, 1139 [2014]; People v Jones, 64 AD3d427, 428 [2009]; cf. People v Okafore, 72 NY2d 81, 83 [1988]; People v Jean, 117 AD3d875, 876-877 [2014]). Consequently, the failure of trial counsel to raise that pointcannot be deemed to constitute the ineffective assistance of counsel (see People v Robles, 116AD3d 1071 [2014]; Peoplev Garris, 99 AD3d 1018, 1019 [2012]; People v Cromwell, 99 AD3d 1017 [2012]). Chambers,J.P., Miller, Duffy and LaSalle, JJ., concur.