Opinion
03-31-2017
The PEOPLE of the State of New York, Respondent, v. Jonathan ARCHIBALD, Defendant–Appellant.
The Legal Aid Bureau Of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau Of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the second degree (Penal Law § 120.05[2] ). Supreme Court sentenced defendant as a persistent felony offender to an indeterminate term of incarceration of 15 years to life. Defendant contends that the evidence is legally insufficient to establish that he possessed a dangerous instrument, i.e., a knife, and that he used it intentionally to cause physical injury to the victim. We reject that contention. The victim testified that he saw defendant with a knife in his hand, and observed and felt defendant use the knife to cut him across the face. We note that the victim's testimony is buttressed by videotape and photographic evidence depicting defendant holding an elongated shiny object and also depicting blood at various locations inside the store where the assault had occurred. That evidence is legally sufficient to establish defendant's identity as the assailant and his use of a dangerous instrument to intentionally inflict physical injury upon the victim (see People v. Butler, 140 A.D.3d 1610, 1610–1611, 33 N.Y.S.3d 602, lv. denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 ; see also People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Viewing the evidence in light of the elements of the crime 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 ), we reject defendant's further contention that the verdict is against the weight of the evidence (see Butler, 140 A.D.3d at 1611, 33 N.Y.S.3d 602 ; see generally
Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's further contention that the court erred in refusing to charge third-degree assault as a lesser included offense of second-degree assault. Although " ‘it is theoretically impossible to commit assault in the second degree under [
Penal Law § 120.05(2) ] without at the same time committing assault in the third degree under [Penal Law § 120.00(1) ]’ " (People v. Smith, 121 A.D.3d 1568, 1569, 992 N.Y.S.2d 831, lv. denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 ; see People v. Fasano, 107 A.D.2d 1052, 1052, 486 N.Y.S.2d 109 ; see generally CPL 1.20 [37] ; People v. Glover, 57 N.Y.2d 61, 63–64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ), here there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater (see Smith, 121 A.D.3d at 1569, 992 N.Y.S.2d 831 ; People v. Samuels, 113 A.D.3d 1117, 1117, 977 N.Y.S.2d 654, lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 ).
Defendant's contention that the sentence imposed by the court violated his right to be free from cruel and unusual punishment pursuant to the Eighth Amendment of the United States Constitution and article I, § 5 of the New York Constitution is not preserved for our review inasmuch as defendant did not raise it before the sentencing court (see People v. Ludwig, 104 A.D.3d 1162, 1164, 961 N.Y.S.2d 657, affd. 24 N.Y.3d 221, 997 N.Y.S.2d 351, 21 N.E.3d 1012 ; People v. Kirk, 96 A.D.3d 1354, 1359, 945 N.Y.S.2d 818, lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 ). In any event, it is without merit (see Kirk, 96 A.D.3d at 1359, 945 N.Y.S.2d 818 ; People v. Verbitsky, 90 A.D.3d 1516, 1516, 934 N.Y.S.2d 888, lv. denied 19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 ). We reject defendant's further contention that the sentence is unduly harsh and severe.
Finally, we note that the record does not support defendant's contention that he was deprived of effective assistance of counsel and due process because defense counsel and the court allegedly misled him about the advisability of going to trial. We note that the record does not demonstrate that defendant was offered the opportunity to plead guilty in exchange for a sentence less than that ultimately imposed. Moreover, the record does not conclusively reveal what defendant and his counsel knew about the strengths and weaknesses of the People's case prior to trial, particularly with reference to the contents of the videotape, and what impact that knowledge may have had on defendant's decision to go to trial. Because defendant's contentions involve matters outside the record on appeal, they must be raised by way of a motion pursuant to CPL article 440 (see People v. Smith, 145 A.D.3d 1628, 1630, 44 N.Y.S.3d 658 ; People v. Riley, 117 A.D.3d 1495, 1496, 984 N.Y.S.2d 735, lv. denied 24 N.Y.3d 1088, 1 N.Y.S.3d 14, 25 N.E.3d 351 ; see also People v. Thomas, 144 A.D.3d 1596, 1597, 1 N.Y.S.3d 14, 25 N.E.3d 351). We conclude on the record before us that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.