| People v Musheyev |
| 2018 NY Slip Op 04348 [162 AD3d 794] |
| June 13, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dmitriy Musheyev, Appellant. |
Paul Skip Laisure, New York, NY (Angad Singh of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and Antara D. Kanth of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C.Holder, J.), rendered April 20, 2015, convicting him of burglary in the first degree, assault in thesecond degree, menacing in the second degree, aggravated harassment in the second degree, andcriminal possession of a weapon in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to prove beyond areasonable doubt that the victim suffered a physical injury is unpreserved for appellate review(see CPL 470.05 [2]; People vMiller, 119 AD3d 613, 614 [2014]). The defendant also contends that the People failedto prove beyond a reasonable doubt that he was guilty of burglary in the first degree, arguing thatthe evidence was legally insufficient to establish that when the defendant entered the victim'sapartment, he had the contemporaneous intent to commit a crime therein. This contention also isunpreserved for appellate review (see People v May, 301 AD2d 784, 785 [2003]).
In any event, viewing the evidence in the light most favorable to the People, we find that itwas legally sufficient to establish beyond a reasonable doubt that the victim suffered a physicalinjury within the meaning of Penal Law § 10.00 (9) (see People v Chiddick, 8 NY3d445 [2007]; People v Lumpkin,154 AD3d 966 [2017]; People vMartinez, 116 AD3d 983, 984 [2014]; People v Terrero, 31 AD3d 672, 673 [2006]), and that thedefendant had the contemporaneous intent to commit a crime when he entered the victim'sapartment (see People v Roman,154 AD3d 969 [2017]; People vVan Praag, 153 AD3d 559, 560 [2017]). Additionally, contrary to the defendant'scontention, the evidence was legally sufficient to establish beyond a reasonable doubt that thedefendant had the intent to cause physical injury to the victim, as required to support theconviction of assault in the second degree (see People v Newland, 83 AD3d 1202 [2011]; People v Medor, 39 AD3d 362[2007]; People v Griffin, 24 AD3d972 [2005]; Matter of JonathanM., 4 AD3d 154 [2004]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdicts of guilt of burglary in the firstdegree and assault in the second degree were not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
[*2] Contrary to the defendant'scontention, he was not deprived of the effective assistance of counsel (see Strickland vWashington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137 [1981]). The"decision to request or consent to the submission of a lesser included offense is often based onstrategic considerations, taking into account a myriad of factors, including the strength of thePeople's case" (People v McGee, 20NY3d 513, 519-520 [2013]). The defendant failed to demonstrate a lack of a strategic reasonor other legitimate explanation for trial counsel's failure to request that the jury be charged onassault in the third degree as a lesser-included offense of assault in the second degree (see People v Briskin, 125 AD3d1113, 1122 [2015]; People vHicks, 110 AD3d 1488, 1489 [2013]; People v Harris, 97 AD3d 1111, 1112 [2012]; People v Calderon, 66 AD3d 314[2009]; see also People vGangaram, 132 AD3d 776, 777 [2015]; People v Casseus, 120 AD3d 828, 829-830 [2014]).
Further, since there was no request that the Supreme Court charge the jury on assault in thethird degree as a lesser-included offense, "the court's failure to submit such offense does notconstitute error" (CPL 300.50 [2]; seePeople v Bailey, 142 AD3d 1096, 1097 [2016]).
The defendant's contention that the sentence imposed by the Supreme Court improperlypenalized him for exercising his right to a jury trial is unpreserved for appellate review, becausehe did not set forth the issue on the record at the time of sentencing (see People v Hodge, 154 AD3d963 [2017]; People v Cole, 140AD3d 1183, 1184 [2016]). In any event, this contention is without merit (see People v Romero, 101 AD3d906, 907 [2012]). Moreover, the sentence imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]). Chambers, J.P., Cohen, Maltese and Barros, JJ., concur.