| People v Meacham |
| 2017 NY Slip Op 04629 [151 AD3d 1666] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v StephanieA. Meacham, Appellant. (Appeal No. 1.) |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), renderedDecember 21, 2009. The judgment convicted defendant, upon a jury verdict, of gang assault inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence to a determinate term ofincarceration of 10 years and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her followinga jury verdict of gang assault in the first degree (Penal Law § 120.07). Followingthat conviction, defendant, in appeal No. 2, entered a plea of guilty to attempted assault in thesecond degree (§§ 110.00, 120.05 [2]), with a promise that the sentence inappeal No. 2 would run concurrently with the sentence in appeal No. 1. The only contentionraised with respect to appeal No. 2 is that, if the judgment in appeal No. 1 is reversed, then thejudgment in appeal No. 2 must be reversed also (see generally People v Pichardo, 1 NY3d 126, 129 [2003]). For thereasons that follow, we conclude that the judgment in appeal No. 1 should be modified as amatter of discretion in the interest of justice with respect to the sentence only, and as modified,affirmed. As a result, there is no basis to reverse the judgment in appeal No. 2.
Defendant contends that County Court abused its discretion in consolidating for trialdefendant's indictment in appeal No. 1 with those of the two codefendants. We reject thatcontention for the same reasons we rejected that contention on the appeal of one of hercodefendants (People v Snyder, 84AD3d 1710, 1711 [2011], lv denied 17 NY3d 810 [2011]). Defendant and her twocodefendants "were part of a group that assaulted the same victim" and, although defendant's rolein the victim's injuries was significantly less than those of her codefendants, the evidence againstthe three codefendants "was virtually identical" (id.). Moreover, "there were noirreconcilable conflicts between the various defense theories . . . [;] none of thecodefendants testified at trial . . . [;] [the] defense [of justification for onecodefendant] was not inconsistent with any of the other defenses asserted at trial[;]. . . the three codefendants did not accuse each other of the crime[;] and none oftheir attorneys acted as a second prosecutor against another codefendant" (id.; seegenerally People v Mahboubian, 74 NY2d 174, 184-185 [1989]). Defendant contends for thefirst time on appeal that the jury's reception of the evidence against her was affected by the factthat she was the only woman on trial, and that contention is therefore not preserved for ourreview (see People v Osborne, 88AD3d 1284, 1285 [2011], lv denied 19 NY3d 999 [2012], deniedreconsideration 19 NY3d 1104 [2012]; People v Wooden, 296 AD2d 865, 866[2002], lv denied 99 NY2d 541 [2002]). We decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant further contends that she was denied her right to an impartial jury based on anallegedly improper comment made by the prosecutor during jury selection. That contention is notpreserved for our review inasmuch as defense counsel "fail[ed] to request any further relief afterthe court sustained his objection" (People v Reyes, 34 AD3d 331, 331 [2006], lv denied 8NY3d 884 [2007]). We decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
At the close of the People's case, defense counsel made a motion for a trial order ofdismissal, contending that the evidence was legally insufficient to establish that defendant was"actually present" during the gang assault (Penal Law § 120.07). Defense counselrenewed that motion following the close of defendant's proof, stating, "I also renew my motion todismiss based on the legal insufficiency of the evidence." Contrary to the People's contention,defense counsel's renewal, directly referencing the earlier motion, is sufficient to preserve for ourreview his contention that the evidence is legally insufficient to establish that defendant wasactually present for the gang assault (cf.People v Maynard, 143 AD3d 1249, 1250 [2016], lv denied 28 NY3d 1148[2017]; see generally People v Hines, 97 NY2d 56, 61-62 [2001], rearg denied 97NY2d 678 [2001]; People v Gray, 86 NY2d 10, 19 [1995]). We nevertheless concludethat defendant's contention lacks merit. Viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidenceis legally sufficient to establish that defendant was "in the immediate vicinity of the crime, and[was] capable of rendering immediate assistance to an individual committing the crime" (People v Sanchez, 13 NY3d 554,564 [2009], rearg denied 14 NY3d 750 [2010]; see § 120.07; People v Varughese, 21 AD3d1126, 1128 [2005], lv denied 6 NY3d 782 [2006]).
Defendant further contends that the evidence is legally insufficient to support the convictionon the ground that there was no evidence she intended to cause serious physical injury to thevictim. We note, however, that defendant's motion for a trial order of dismissal was not"specifically directed" at that alleged deficiency in the proof (Gray, 86 NY2d at 19). Inany event, that contention also lacks merit. It is well settled that "[a] defendant may be presumedto intend the natural and probable consequences of his[or her] actions . . . , and[i]ntent may be inferred from the totality of conduct of the accused" (People v Mahoney, 6 AD3d 1104,1104 [2004], lv denied 3 NY3d 660 [2004] [internal quotation marks omitted]; seegenerally People v Steinberg, 79 NY2d 673, 684-685 [1992]). Here, after viewing theevidence in the light most favorable to the People (see Contes, 60 NY2d at 621), weconclude that the evidence was sufficient to establish intent "based on evidence of defendant'sconduct before, during and after the [beating] of the victim" (People v Davis, 300 AD2d78, 78 [2002], lv denied 99 NY2d 627 [2003]). We further conclude, after viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), that the verdict is not against the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]; Snyder, 84 AD3d at 1712; People v Meacham, 84 AD3d1713, 1715 [2011], lv denied 17 NY3d 808 [2011]).
With respect to defendant's contention that she was denied effective assistance of counsel,"we note that the constitutional right to effective assistance of counsel 'does not guarantee aperfect trial, but assures the defendant a fair trial' " (People v Ennis, 107 AD3d 1617, 1620 [2013], lv denied 22NY3d 1040 [2013], denied reconsideration 23 NY3d 1036 [2014], quoting People vFlores, 84 NY2d 184, 187 [1994]). Defense counsel made appropriate motions, effectivelycross-examined the People's witnesses, and pursued a viable defense strategy. In our view,defense counsel made reasonable strategic decisions in an "unsuccessful attempt[ ] to advancethe best possible defense" (People v Henry, 95 NY2d 563, 565 [2000]). We thus concludethat "the evidence, the law, and the circumstances of [this] particular case, viewed in totality andas of the time of the representation, reveal that the attorney provided meaningful representation"(People v Baldi, 54 NY2d 137, 147 [1981]). To the extent that defendant contends thatdefense counsel was ineffective in advising her on whether to accept the plea offer, thatcontention involves matters outside the record and must be raised by way of a motion pursuant toCPL article 440 (see People vCarver, 124 AD3d 1276, 1280 [2015], affd 27 NY3d 418 [2016]; People v Santiago, 118 AD3d1032, 1033 [2014]).
To the extent that defendant preserved for our review her additional contention that she wasdenied a fair trial by prosecutorial misconduct (see CPL 470.05 [2]), we conclude that itlacks merit. "The alleged misconduct was 'not so egregious as to deprive defendant of a fairtrial' " (People v Astacio,105 AD3d 1394, 1396 [2013], lv denied 22 NY3d 1154 [2014]).
With respect to her sentence, defendant contends that she was penalized for exercising herright to trial inasmuch as the sentence imposed after trial was much greater than the sentenceproposed in the pretrial plea offer. Inasmuch as defendant failed to raise that contention atsentencing, she failed to preserve it for our review (see People v Grace, 145 AD3d 1462, 1463-1464 [2016]; People v Stubinger, 87 AD3d1316, 1317 [2011], lv denied 18 NY3d 862 [2011]). In any event, we conclude thatthe contention lacks merit. "The mere fact that a sentence imposed after trial is greater than thatoffered in connection with plea negotiations is not proof that defendant was punished forasserting his [or her] right to trial . . . , and there is no evidence in the record that thesentencing court was vindictive" (Peoplev Thomas, 60 AD3d 1341, 1343 [2009], lv denied 12 NY3d 921 [2009] [internalquotation marks omitted]; see Stubinger, 87 AD3d at 1317).
Finally, we agree with defendant that the imposition of a determinate term of incarceration of13 years is unduly harsh and severe. It is well settled that our "sentence-review power may beexercised, if the interest of justice warrants, without deference to the sentencing court"(People v Delgado, 80 NY2d 780, 783 [1992]), and that we may " 'substitute ourown discretion for that of a trial court which has not abused its discretion in the imposition of asentence' " (People vJohnson, 136 AD3d 1417, 1418 [2016], lv denied 27 NY3d 1134 [2016]). Weconclude that a reduction in the sentence is appropriate and, as a matter of discretion in theinterest of justice, we modify the judgment by reducing the sentence to a determinate term ofincarceration of 10 years (see CPL 470.20 [6]; Johnson, 136 AD3d at 1418), to befollowed by the five years of postrelease supervision imposed by the court.Present—Carni, J.P., Lindley, DeJoseph, Curran and Troutman, JJ.