| People v Archibald |
| 2017 NY Slip Op 02564 [148 AD3d 1794] |
| March 31, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v JonathanArchibald, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered October 29, 2014. The judgment convicted defendant, upon a jury verdict, of assault inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofassault in the second degree (Penal Law § 120.05 [2]). Supreme Court sentenceddefendant as a persistent felony offender to an indeterminate term of incarceration of 15 years tolife. Defendant contends that the evidence is legally insufficient to establish that he possessed adangerous instrument, i.e., a knife, and that he used it intentionally to cause physical injury to thevictim. We reject that contention. The victim testified that he saw defendant with a knife in hishand, and observed and felt defendant use the knife to cut him across the face. We note that thevictim's testimony is buttressed by videotape and photographic evidence depicting defendantholding an elongated shiny object and also depicting blood at various locations inside the storewhere the assault had occurred. That evidence is legally sufficient to establish defendant'sidentity as the assailant and his use of a dangerous instrument to intentionally inflict physicalinjury upon the victim (see People vButler, 140 AD3d 1610, 1610-1611 [2016], lv denied 28 NY3d 969 [2016];see also People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light ofthe elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's further contention that the verdict is against the weight of the evidence (seeButler, 140 AD3d at 1611; see generally Bleakley, 69 NY2d at 495).
We reject defendant's further contention that the court erred in refusing to chargethird-degree assault as a lesser included offense of second-degree assault. Although " 'itis theoretically impossible to commit assault in the second degree under [Penal Law§ 120.05 (2)] without at the same time committing assault in the third degree under[Penal Law § 120.00 (1)]' " (People v Smith, 121 AD3d 1568, 1569 [2014], lv denied 26NY3d 1150 [2016]; see People v Fasano, 107 AD2d 1052, 1052 [1985]; see generallyCPL 1.20 [37]; People v Glover, 57 NY2d 61, 63-64 [1982]), here there is noreasonable view of the evidence that would support a finding that defendant committed the lesseroffense but not the greater (see Smith, 121 AD3d at 1569; People v Samuels, 113 AD3d1117, 1117 [2014], lv denied 24 NY3d 964 [2014]).
Defendant's contention that the sentence imposed by the court violated his right to be freefrom cruel and unusual punishment pursuant to the Eighth Amendment of the United StatesConstitution and article I, § 5 of the New York Constitution is not preserved for ourreview inasmuch as defendant did not raise it before the sentencing court (see People v Ludwig, 104 AD3d1162, 1164 [2013], affd 24 NY3d 221 [2014]; People v Kirk, 96 AD3d 1354, 1359 [2012], lv denied 20NY3d 1012 [2013]). In any event, it is without merit (see Kirk, 96 AD3d at 1359; People v Verbitsky, 90 AD3d1516, 1516 [2011], lv denied 19 NY3d 868 [2012]). We reject defendant's furthercontention that the sentence is unduly harsh and severe.
Finally, we note that the record does not support defendant's contention that he was deprivedof effective assistance of counsel and due process because defense counsel and the courtallegedly misled him about the advisability of going to trial. We note that the record does notdemonstrate that defendant was offered the opportunity to plead guilty in exchange for a sentenceless than that ultimately imposed. Moreover, the record does not conclusively reveal whatdefendant and his counsel knew about the strengths and weaknesses of the People's case prior totrial, particularly with reference to the contents of the videotape, and what impact that knowledgemay have had on defendant's decision to go to trial. Because defendant's contentions involvematters outside the record on appeal, they must be raised by way of a motion pursuant to CPLarticle 440 (see People v Smith, 145AD3d 1628, 1630 [2016]; People vRiley, 117 AD3d 1495, 1496 [2014], lv denied 24 NY3d 1088 [2014]; see also People v Thomas, 144 AD3d1596, 1597 [2016]). We conclude on the record before us that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Smith, J.P., Peradotto, DeJoseph, NeMoyer and Scudder, JJ.