| People v Thomas |
| 2016 NY Slip Op 01079 [136 AD3d 1390] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vVernon Thomas, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Vernon Thomas, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered June 24, 2014. The judgment convicted defendant, upon a jury verdict, ofattempted assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of attempted assault in the first degree (Penal Law §§ 110.00,120.10 [1]). Defendant failed to preserve for our review his contention that hisconviction is not supported by legally sufficient evidence, inasmuch as he moved for atrial order of dismissal on a ground different from that raised on appeal (see People v Scott, 61 AD3d1348, 1349 [2009], lv denied 12 NY3d 920 [2009], reconsiderationdenied 13 NY3d 799 [2009]). In any event, we reject defendant's present contention.By throwing gasoline on the victim and threatening to burn her while he held a lighter inhis hand, defendant went "beyond mere preparation to the point that his conduct waspotentially and immediately dangerous" (People v Denson, 26 NY3d 179, 192 [2015]; see People v Davis, 83 AD3d1492, 1492 [2011], lv denied 17 NY3d 815 [2011], reconsiderationdenied 17 NY3d 903 [2011]; see also People v Adams, 222 AD2d 1124,1124 [1995], lv denied 87 NY2d 1016 [1996]). Viewing the evidence in light ofthe elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
We conclude that any error in Supreme Court's Sandoval ruling is harmlessinasmuch as the evidence of defendant's guilt is overwhelming, and there is nosignificant probability that defendant would have been acquitted but for the error (see People v Grant, 7 NY3d421, 424-425 [2006]). Contrary to defendant's further contention, we conclude thatthe court properly allowed the People to present evidence that he engaged in unchargedcriminal conduct immediately before and after the attempted assault. That evidence wasproperly admitted "to complete the narrative of the events charged in the indictment" (People v Leeson, 48 AD3d1294, 1296 [2008], affd 12 NY3d 823 [2009]) and, in any event, the courtprovided the jury with an appropriate limiting instruction, thereby minimizing anypotential prejudice to defendant (see People v Bassett, 55 AD3d 1434, 1436 [2008], lvdenied 11 NY3d 922 [2009]). We reject defendant's contention that he was deniedeffective assistance of counsel based upon his attorney's failure to cross-examine thePeople's domestic violence trauma expert (see People v Philbert, 267 AD2d 607,607-608 [1999], lv denied 94 NY2d 905 [2000]; People v Almanzar, 188AD2d 654, 655 [1992], lv denied 81 NY2d 881 [1993]). Contrary to defendant'sfurther contention, the court properly denied his motion to set aside the verdict pursuantto CPL 330.30 (3) without conducting a hearing. Defendant failed to show that theallegedly new evidence could not have been discovered earlier in the exercise ofreasonable diligence (see Peoplev Sterina, 108 AD3d 1088, 1091 [2013]), nor in any event did he show that itwas "of such [*2]character as to create a probability thathad such evidence been received at the trial the verdict would have been more favorableto the defendant" (CPL 330.30 [3]; see People v Simon, 71 AD3d 1574, 1576 [2010], lvdenied 15 NY3d 757 [2010], reconsideration denied 15 NY3d 856 [2010]).The sentence is not unduly harsh or severe.
We have examined defendant's contentions in his pro se supplemental brief andconclude that none requires reversal or modification of the judgment.Present—Whalen, P.J., Smith, Centra, Carni and Scudder, JJ.