Opinion
615 KA 16–02082
07-06-2018
The PEOPLE of the State of New York, Respondent, v. Thomas M. LASHER, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court, Niagara County ( Richard C. Kloch, Sr., J.), rendered June 21, 2016. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree and assault in the first 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 of attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ) and assault in the first degree (§ 120.10[1] ). Defendant's challenge to the legal sufficiency of the evidence disproving justification is unpreserved for our review because his motion for a trial order of dismissal was not " ‘specifically directed’ at" that alleged shortcoming in the evidence ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. Timmons, 151 A.D.3d 1682, 1683, 56 N.Y.S.3d 729 [4th Dept. 2017], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ; People v. Stoby, 4 A.D.3d 766, 766, 771 N.Y.S.2d 623 [4th Dept. 2004], lv denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478 [2004] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's contention that he was denied effective assistance of counsel. Defendant failed to establish "the absence of strategic or other legitimate explanations" for counsel's decision not to pursue the defense of extreme emotional disturbance ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; see generally People v. Lane, 60 N.Y.2d 748, 750, 469 N.Y.S.2d 663, 457 N.E.2d 769 [1983] ; People v. Castro, 76 A.D.3d 421, 426, 907 N.Y.S.2d 167 [1st Dept. 2010], lv denied 15 N.Y.3d 892, 912 N.Y.S.2d 580, 938 N.E.2d 1015 [2010] ). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant was afforded meaningful representation (see generally People v. Wragg, 26 N.Y.3d 403, 412, 23 N.Y.S.3d 600, 44 N.E.3d 898 [2015] ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, the sentence is not unduly harsh or severe.