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People v. Beverly

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1996
229 A.D.2d 970 (N.Y. App. Div. 1996)

Opinion

July 12, 1996

Appeal from the Supreme Court, Erie County, Wolfgang, J.

Present — Green, J.P., Lawton, Fallon, Doerr and Boehm, JJ.


Judgment unanimously affirmed. Memorandum: We reject the contention that defendant was denied effective assistance by defense counsel's failure to request that Supreme Court consider assault in the second degree (Penal Law § 120.05, [4]) and reckless endangerment in the second degree (Penal Law § 120.20) as lesser included offenses of attempted murder in the first degree (Penal Law § 110.00, 125.27 Penal). Neither assault ( see, People v. Lord, 103 A.D.2d 1032; People v. Grant, 96 A.D.2d 867, 868) nor reckless endangerment ( see, People v. Ramirez, 55 N.Y.2d 708) is a lesser included offense of attempted murder.

Defendant's waiver of a jury trial is authorized by CPL 320.10. The indictment did not charge defendant with the crime of murder in the first degree ( see, CPL 320.10).

The sentence of 15 years to life is the minimum permitted by law for attempted murder in the first degree ( see, Penal Law § 70.00 [a]; [3] [a] [i]) and thus the sentence cannot be modified in the exercise of our interest of justice jurisdiction ( see, CPL 470.15 [b]).


Summaries of

People v. Beverly

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 12, 1996
229 A.D.2d 970 (N.Y. App. Div. 1996)
Case details for

People v. Beverly

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID J. BEVERLY…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 12, 1996

Citations

229 A.D.2d 970 (N.Y. App. Div. 1996)
645 N.Y.S.2d 689