| People v Morris |
| 2015 NY Slip Op 02305 [126 AD3d 1370] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDarron S. Morris, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Cindy F. Intschert, District Attorney, Watertown (Harmony A. Healy of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered September 17, 2012. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree, assault in the first degree, criminal use of afirearm in the first degree, and criminal possession of a weapon in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, attempted murder in the second degree (Penal Law§§ 110.00, 125.25 [1]). We reject defendant's contention that CountyCourt erred in failing, sua sponte, to conduct a competency hearing pursuant to CPL730.30 (2). The institution in which defendant was confined determined that he was nolonger an incapacitated person (see CPL 730.60 [2]) and, thereafter, neitherdefendant nor the District Attorney made a motion for a competency hearing. Thus, thedetermination whether to order a hearing on its own motion was within the court'sdiscretion (see CPL 730.30 [2]; People v Tortorici, 92 NY2d 757, 766[1999], cert denied 528 US 834 [1999]). "Considering the evidence before [the][c]ourt regarding defendant's competence, we conclude that the court did not abuse itsdiscretion in failing, on its own, to order a hearing" (Tortorici, 92 NY2d at 766;see People v Carrion, 65AD3d 693, 693-694 [2009], lv denied 13 NY3d 858 [2009]; People v Gaines, 26 AD3d269, 270 [2006], lv denied 6 NY3d 847 [2006]).
Defendant failed to preserve for our review his further contention that the court erredin allowing the People to present evidence concerning prior uncharged crimes (see People v Reed, 78 AD3d1481, 1482 [2010], lv denied 16 NY3d 745 [2011]), and we decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). By making only a general motion to dismiss thecharges of attempted murder and assault in the first degree after the People rested theircase (see People v Gray, 86 NY2d 10, 19 [1995]), and by failing to renew thatpart of the motion at the close of his case (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]), defendant failed to preserve hiscontention that his conviction of those charges is not supported by legally sufficientevidence (see People vBausano, 122 AD3d 1341, 1341-1342 [2014]). Although defendant madespecific challenges to the legal sufficiency of the evidence supporting the remainingcharges after the People rested their case, he failed to renew that part of his motion at theclose of his case and thus failed to preserve those challenges for our review (seeHines, 97 NY2d at 61). Viewing the evidence in light of the elements of the crimesas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contentionthat the verdict is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that he was denied effective assistance of counsel.Viewing the record as a whole, we conclude that trial counsel provided meaningfulrepresentation (see People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failedto preserve for our [*2]review his further contention thathe was punished for asserting his right to a trial when the court imposed the maximumterms of incarceration (seePeople v Stubinger, 87 AD3d 1316, 1317 [2011], lv denied 18 NY3d862 [2011]), and we decline to exercise our power to review that contention as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). We conclude,moreover, that the sentence is not unduly harsh or severe. Present—Smith, J.P.,Carni, Sconiers and Valentino, JJ.