| People v Mosquera |
| 2020 NY Slip Op 01646 [181 AD3d 723] |
| March 11, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christian Mosquera, Appellant. |
Paul Skip Laisure, New York, NY (Melissa S. Horlick of counsel), forappellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kenneth C. Holder, J.), rendered November 7, 2016, convicting him of attemptedmurder in the second degree, attempted assault in the first degree (two counts), criminalpossession of a weapon in the second degree (two counts), and criminal possession of aweapon in the third degree, upon a jury verdict, and sentencing him, inter alia, todeterminate terms of imprisonment of 20 years on the conviction of attempted murder inthe second degree, 15 years on each of the convictions of attempted assault in the firstdegree under counts four and six of the indictment, 15 years on each of the convictionsof criminal possession of a weapon in the second degree, and 6 years on the convictionof criminal possession of a weapon in the third degree, with the sentences on theconvictions of attempted murder in the second degree and attempted assault in the firstdegree under count four of the indictment to run consecutively to each other, and theremaining sentences to run concurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, (1) by reducing the term of imprisonment imposed on the conviction of attemptedmurder in the second degree from a determinate term of imprisonment of 20 years to adeterminate term of imprisonment of 10 years, (2) by reducing the term of imprisonmentimposed upon each conviction of attempted assault in the first degree from a determinateterm of imprisonment of 15 years to a determinate term of imprisonment of 10 years, and(3) by reducing the term of imprisonment imposed upon each conviction of criminalpossession of a weapon in the second degree from a determinate term of imprisonment of15 years to a determinate term of imprisonment of 10 years; as so modified, the judgmentis affirmed, with the terms of imprisonment to run consecutively and concurrently asdirected by the Supreme Court.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of attempted assault in the first degree under count four of theindictment beyond a reasonable doubt. Contrary to the defendant's contention, theevidence was legally sufficient to establish that he intended to cause serious physicalinjury (see Penal Law §§ 10.00 [10]; 110.00, 120.10 [1];People v Bracey, 41 NY2d 296, 301 [1977]; People v Anderson, 161 AD3d 1097, 1098 [2018]; People v Newman, 153 AD3d639 [2017]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt on the count ofattempted assault in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel under the New York Constitution since, viewing defense counsel'sperformance in totality, counsel provided meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).Further, the defendant was not deprived of the effective assistance of counsel under theUnited States Constitution (see Strickland v Washington, 466 US 668[1984]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]). Rivera, J.P., Chambers, Roman and Brathwaite Nelson,JJ., concur.