Opinion
5494 Ind. 447/09
02-15-2018
The PEOPLE of the State of New York, Respondent, v. Geraldo GARAY, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Katherine M.A. Pecore of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Rosemary Herbert, Office of the Appellate Defender, New York (Katherine M.A. Pecore of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.
Sweeny, J.P., Richter, Andrias, Webber, Oing, JJ.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at speedy trial motion; Laura A. Ward, J. at jury trial and sentencing), rendered March 31, 2011, convicting defendant of gang assault in the first degree and assault in the second degree, and sentencing him to an aggregate term of 7 years, unanimously modified, on the law, to the extent of reducing the gang assault conviction to attempted gang assault in the first degree, and remanding the matter for resentencing on both convictions.
The evidence was legally insufficient to establish that the injuries sustained by the victim constituted serious physical injury (see Penal Law § 10.00[10] ), an element of gang assault in the first degree (see People v. Rosado, 88 A.D.3d 454, 930 N.Y.S.2d 10 [1st Dept. 2011], lv denied 18 N.Y.3d 928, 942 N.Y.S.2d 467, 965 N.E.2d 969 [2012] ). Although there was testimony that the victim still had some physical effects of the assault at the time of trial, the evidence on this was limited and, in any event, the record before the jury did not show that the injury was such that a reasonable observer would find the victim's appearance distressing or objectionable (see People v. McKinnon, 15 N.Y.3d 311, 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 [2010] ). It is also undisputed that the victim's injuries did not impair his general health (see Rosado, 88 A.D.3d at 454, 930 N.Y.S.2d 10 ). We find that the most appropriate remedy is a reduction to the lesser included offense of attempted gang assault in the first degree pursuant to CPL 470.15(2)(a), with a remand for resentencing on both convictions (see People v. Tucker, 91 A.D.3d 1030, 1032, 936 N.Y.S.2d 386 [3d Dept. 2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ; People v. Delgado, 167 A.D.2d 181, 182, 561 N.Y.S.2d 573 [1st Dept. 1990], lv denied 77 N.Y.2d 905, 569 N.Y.S.2d 937, 572 N.E.2d 620 [1991] ).
Defendant's only preserved argument concerning the denial of his speedy trial motion is that the court improperly applied the rule of People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 (1st Dept. 1982), lv denied 58 N.Y.2d 784, 459 N.Y.S.2d 1038, 445 N.E.2d 226 (1982) to an adjournment granted after the court had denied a prior CPL 30.30 motion by one of the two codefendants. However, we find that the reasonable 20–day adjournment following the decision on that motion was excludable under the circumstances (see People v. Ali, 195 A.D.2d 368, 369, 600 N.Y.S.2d 55 [1st Dept. 1993], lv denied 82 N.Y.2d 804, 604 N.Y.S.2d 940, 624 N.E.2d 1035 [1993] ). Defendant failed to preserve his remaining speedy trial arguments. In particular, a statement in his motion that he "reserves" an argument never actually made had no preservation effect (see People v. Bierenbaum, 301 A.D.2d 119, 152, 748 N.Y.S.2d 563 [2002], lv denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003], cert denied 540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 40 [2003] ), and the argument in question was, in any event, materially different from those raised on appeal. We decline to review defendant's unpreserved claims in the interest of justice. As an alternative holding, we reject them on the merits (see People v. Brown, 28 N.Y.3d 392, 405, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ; People v. Davis, 80 A.D.3d 494, 494–495, 915 N.Y.S.2d 250 [1st Dept. 2011] ).
To the extent the record permits review, we find that defense counsel was not ineffective under the state or federal standards for failing to challenge, as repugnant, the verdict convicting defendant as noted but acquitting him of first-degree assault under Penal Law § 120.10(1). Such a challenge would have had "little or no chance of success" ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [internal quotation marks omitted] ). We decline to review defendant's unpreserved repugnancy claim in the interest of justice. As an alternative holding, we reject it on the merits. Under the court's charge, the jury could theoretically have made consistent findings supporting the combination of verdicts it reached, regardless of whether there was any evidentiary basis for those findings (see People v. Muhammad, 17 N.Y.3d 532, 539, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ; People v. Tucker, 55 N.Y.2d 1, 6–7, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981] ).
Since we are remanding for a plenary resentencing, we do not reach defendant's excessive sentence claim.