| People v Kowal |
| 2018 NY Slip Op 01709 [159 AD3d 1346] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Sheila M. Kowal, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered February19, 2013. The judgment convicted defendant, upon a jury verdict, of attempted murder in thesecond degree, assault in the first degree and burglary in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]),assault in the first degree (§ 120.10 [1]), and two counts of burglary in the firstdegree (§ 140.30 [2], [3]). Defendant's contention that the evidence is legallyinsufficient to support her conviction of attempted murder in the second degree and burglary inthe first degree is not preserved for our review inasmuch as her general motion for a trial order ofdismissal was not " 'specifically directed' at" the alleged shortcomings in the evidenceraised on appeal (People v Gray, 86 NY2d 10, 19 [1995]). Contrary to defendant's furthercontention, viewing the evidence in light of the elements of the crimes of attempted murder andburglary as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence with respect to those crimes (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's contention that defense counsel was ineffective for failing to object toCounty Court's charge in which it used the phrase "personally or by acting in concert" withrespect to the attempted murder count, even though the indictment used only the phrase "actingin concert" in that count. It is well settled that "[t]here is no distinction between liability as aprincipal and criminal culpability as an accessory and the status for which the defendant isconvicted has no bearing upon the theory of the prosecution" (People v Duncan, 46 NY2d74, 79-80 [1978], rearg denied 46 NY2d 940 [1979], cert denied 442 US 910[1979], rearg dismissed 56 NY2d 646 [1982]). Furthermore, "[a]n indictment charging adefendant as a principal is not unlawfully amended by the admission of proof and instruction tothe jury that a defendant is additionally charged with acting-in-concert to commit the samecrime" (People v Rivera, 84 NY2d 766, 769 [1995]), and the same is true where, as here,the defendant is originally charged only as an accomplice. Thus, we conclude that defensecounsel was not ineffective inasmuch as " 'the jury was properly instructed concerningboth theories based upon the evidence adduced at trial' " (People v Young, 55 AD3d 1234,1235 [4th Dept 2008], lv denied 11 NY3d 901 [2008]).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe.Finally, we note that the certificate of conviction in the stipulated record on appeal incorrectlyrecites that defendant is a second felony offender and that a 12-year order of protection wasissued. The certificate of conviction therefore must be amended to remove any reference thereto(see generally People v Young, 74AD3d 1864, 1865 [4th Dept 2010], lv denied 15 NY3d 811 [2010]).Present—Whalen, P.J., Smith, DeJoseph, NeMoyer and Winslow, JJ.