People v Chander

2016 NY Slip Op 05163 [140 AD3d 1181]

June 29, 2016

Appellate Division, Second Department

As corrected through Wednesday, August 3, 2016

[*1]

The People of the State of New York,Respondent, v Vipan Chander, Appellant.

Lynn W. L. Fahey, New York, NY (Patricia Pazner of counsel), for appellant, andappellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), forrespondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered February 27, 2013, convicting him of burglary in the first degree,arson in the third degree, attempted assault in the first degree, assault in the seconddegree (seven counts), reckless endangerment in the first degree (two counts), criminalpossession of a weapon in the third degree (two counts), operating a motor vehicle whileunder the influence of alcohol or drugs (two counts), and resisting arrest, upon a juryverdict, and sentencing him to a determinate term of 18 years' imprisonment to befollowed by five years of postrelease supervision on the conviction of burglary in the firstdegree, an indeterminate term of 5 to 15 years' imprisonment on the conviction of arsonin the third degree, a determinate term of 10 years' imprisonment plus five years ofpostrelease supervision on the conviction of attempted assault in the first degree,determinate terms of seven years' imprisonment to be followed by three years ofpostrelease supervision on each of the convictions of assault in the second degree,indeterminate terms of 21/3 to 7 years' imprisonment on each of theconvictions of reckless endangerment in the first degree, indeterminate terms of21/3 to 7 years' imprisonment on each of the convictions of criminalpossession of a weapon in the third degree, indeterminate terms of 11/3 to4 years' imprisonment on each of the convictions of operating a motor vehicle whileunder the influence of alcohol or drugs, and a determinate term of imprisonment of oneyear on the conviction of resisting arrest, with the sentences on the convictions ofburglary in the first degree, arson in the third degree, and three concurrent sentences onthe convictions for assault in the second degree to run consecutively to each other, andthe remaining sentences to run concurrently.

Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by providing that the sentence on the conviction of arson in the third degree shallrun concurrently to the sentence on the conviction of burglary in the first degree; as somodified, the judgment is affirmed.

The defendant's contention that the prosecution failed to prove his guilt by legallysufficient evidence because his intoxication rendered him incapable of forming therequisite criminal intent is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11NY3d 484, 492 [2008]; People v Alston, 42 AD3d 468, 469 [2007]). In any event,"the general rule is that an intoxicated person can form the requisite criminal intent tocommit a crime, and it is for the trier of fact to decide if the extent of the intoxicationacted to negate the element of intent" (People v Alston, 42 AD3d at 469 [internalquotation marks omitted]; see Penal Law § 15.25). Viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), we find that it was [*2]legallysufficient to establish beyond a reasonable doubt that the defendant manifested therequisite criminal intent.

Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633, 643 [2006]; see also People v Narimanbekov, 258AD2d 417 [1999]).

The defendant's contention that he was denied the effective assistance of counselbecause his trial counsel failed to call an expert witness in support of his claim ofintoxication is not properly raised on direct appeal from the judgment, as the allegedfailure to consult or hire an expert witness involves matter dehors the record (see People v Hernandez, 125AD3d 885, 887 [2015]; People v Staropoli, 49 AD3d 568 [2008]).

In his pro se supplemental brief, the defendant contends that he was denied hisconstitutional and statutory right to a speedy trial (see CPL 30.20, 30.30).However, appellate review of this claim is precluded by the defendant's failure to providea sufficient record for such review (see People v Adamson, 131 AD3d 701, 703 [2015]; People v Davison, 92 AD3d691, 692 [2012]; People vThomas, 46 AD3d 712, 712-713 [2007]; People v Santana, 232 AD2d663 [1996]).

The sentence imposed was excessive to the extent indicated (see People vSuitte, 90 AD2d 80, 85-86 [1982]).

The defendant's remaining contentions raised in his pro se supplemental brief arewithout merit. Balkin, J.P., Hall, Barros and Connolly, JJ., concur.