Opinion
105466.
03-09-2017
The PEOPLE of the State of New York, Respondent, v. Tyquanne D. MADISON, also known as Turk, Appellant.
M. Joe Landry, Schenectady, for appellant, and appellant pro se. Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), for respondent.
M. Joe Landry, Schenectady, for appellant, and appellant pro se.
Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH, ROSE and AARONS, JJ.
ROSE, J.Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered July 13, 2012, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, attempted assault in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree.
Defendant was charged by indictment with attempted murder in the second degree, assault in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree based upon allegations that he went to the victim's apartment and shot him. A jury trial ensued and, in response to defendant's motion for a trial order of dismissal at the close of the People's proof, County Court reduced the charge of assault in the first degree to attempted assault in the first degree, finding that the People failed to establish that the victim suffered a serious physical injury (see Penal Law § 120.10[1] ). Defendant was thereafter convicted of attempted assault in the first degree, as well as the remaining charges. He now appeals.
Defendant's contention that the verdict was not based upon legally sufficient evidence identifying him as the shooter is unpreserved for our review inasmuch as he failed to specify identification as the issue in his motion for a trial order of dismissal at the close of the People's proof (see People v. Brown, 139 A.D.3d 1178, 1178, 31 N.Y.S.3d 308 [2016] ; People v. Thomas, 12 A.D.3d 935, 936, 785 N.Y.S.2d 585 [2004], lv. denied 4 N.Y.3d 749, 790 N.Y.S.2d 661, 824 N.E.2d 62 [2004] ). In any event, were we to consider the issue, we would find that, when viewed in the light most favorable to the People (see People v. Denson, 26 N.Y.3d 179, 188, 21 N.Y.S.3d 179, 42 N.E.3d 676 [2015] ), the evidence provided a valid line of reasoning and permissible inferences from which a jury could conclude that defendant was the shooter (see People v. McCommons, 143 A.D.3d 1150, 1155, 40 N.Y.S.3d 578 [2016] ; People v. Ford, 110 A.D.3d 1368, 1369, 973 N.Y.S.2d 859 [2013], lv. denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ).
Contrary to defendant's argument, this is not a case requiring an analysis of recantation evidence inasmuch as none of the testifying witnesses later recanted his or her testimony after trial (see generally
Defendant also argues that County Court erred in reducing the charge of assault in the first degree and, instead, the court should have either denied his motion for a trial order of dismissal or reserved decision. This contention is also unpreserved. If it was properly before us, we would find that reversal is not warranted. Although we agree that County Court should have denied defendant's motion for a trial order of dismissal based on its belief that legally sufficient evidence existed to support a lesser included offense of assault in the first degree (see CPL 290.10[1] ; People v. Vaughan, 48 A.D.3d 1069, 1070, 850 N.Y.S.2d 735 [2008], lv. denied 10 N.Y.3d 845, 859 N.Y.S.2d 404, 889 N.E.2d 91 [2008], cert. denied 555 U.S. 910, 129 S.Ct. 252, 172 L.Ed.2d 190 [2008] ; People v. Smith, 183 A.D.2d 653, 656, 584 N.Y.S.2d 795 [1992], lv. denied 80 N.Y.2d 910, 588 N.Y.S.2d 835, 602 N.E.2d 243 [1992] ; People v. Johnson, 76 A.D.2d 983, 984, 429 N.Y.S.2d 281 [1980] ), our review of the record establishes that defendant suffered no prejudice as a result of the improper procedure (compare People v. Congilaro, 60 A.D.2d 442, 458, 400 N.Y.S.2d 409 [1977] ).
Defendant also failed to preserve his pro se claim that County Court should have submitted attempted assault in the first degree as an alternative to attempted murder in the second degree because those crimes constitute inclusory concurrent counts (see People v. Hayes, 104 A.D.3d 1050, 1052, 962 N.Y.S.2d 443 [2013], lv. denied 22 N.Y.3d 1041, 981 N.Y.S.2d 375, 4 N.E.3d 387 [2013] ). In any event, attempted assault in the first degree is not an inclusory concurrent count of attempted murder in the second degree because it is possible to commit the latter without also committing the former (see Penal Law §§ 120.10[1] ; 125.25[1]; CPL 300.30[4] ; People v. Williams, 123 A.D.3d 527, 528, 998 N.Y.S.2d 364 [2014], lv. denied 25 N.Y.3d 1209, 16 N.Y.S.3d 531, 37 N.E.3d 1174 [2015] ; People v. Crews, 281 A.D.2d 904, 905, 722 N.Y.S.2d 204 [2001], lv. denied 96 N.Y.2d 861, 730 N.Y.S.2d 35, 754 N.E.2d 1118 [2001] ; People v. Alford, 251 A.D.2d 1032, 1032, 675 N.Y.S.2d 267 [1998], lv. denied 92 N.Y.2d 892, 680 N.Y.S.2d 56, 702 N.E.2d 841 [1998] ). For this reason, we also reject defendant's pro se contention that his conviction of attempted murder in the second degree compels the dismissal of his conviction of attempted assault in the first degree. Defendant's remaining contentions, including his claim of ineffective assistance of counsel, have been considered and determined to be lacking in merit.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY, LYNCH and AARONS, JJ., concur.
People v. Lane, 100 A.D.3d 1540, 1541, 954 N.Y.S.2d 363 [2012], lv. denied 20 N.Y.3d 1063, 962 N.Y.S.2d 613, 985 N.E.2d 923 [2013] ; People v. Deacon, 96 A.D.3d 965, 969, 946 N.Y.S.2d 613 [2012], appeal dismissed 20 N.Y.3d 1046, 961 N.Y.S.2d 374, 985 N.E.2d 139 [2013] ; People v. Wong, 11 A.D.3d 724, 725–726, 784 N.Y.S.2d 158 [2004] ).