Opinion
2015–03629 Ind. No. 2237/13
06-13-2018
The PEOPLE, etc., respondent, v. Dmitriy MUSHEYEV, appellant.
Paul Skip Laisure, New York, N.Y. (Angad Singh of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Antara D. Kanth of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Angad Singh of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Antara D. Kanth of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered April 20, 2015, convicting him of burglary in the first degree, assault in the second degree, menacing in the second degree, aggravated harassment in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to prove beyond a reasonable doubt that the victim suffered a physical injury is unpreserved for appellate review (see CPL 470.05[2] ; People v. Miller, 119 A.D.3d 613, 614, 987 N.Y.S.2d 881 ). The defendant also contends that the People failed to prove beyond a reasonable doubt that he was guilty of burglary in the first degree, arguing that the evidence was legally insufficient to establish that when the defendant entered the victim's apartment, he had the contemporaneous intent to commit a crime therein. This contention also is unpreserved for appellate review (see People v. May, 301 A.D.2d 784, 785, 754 N.Y.S.2d 78 ).
In any event, viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish beyond a reasonable doubt that the victim suffered a physical injury within the meaning of Penal Law § 10.00(9) (see People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ; People v. Lumpkin, 154 A.D.3d 966, 63 N.Y.S.3d 461 ; People v. Martinez, 116 A.D.3d 983, 984, 983 N.Y.S.2d 839 ; People v. Terrero, 31 A.D.3d 672, 673, 818 N.Y.S.2d 288 ), and that the defendant had the contemporaneous intent to commit a crime when he entered the victim's apartment (see People v. Roman, 154 A.D.3d 969, 63 N.Y.S.3d 454 ; People v. Van Praag, 153 A.D.3d 559, 560, 60 N.Y.S.3d 224 ). Additionally, contrary to the defendant's contention, the evidence was legally sufficient to establish beyond a reasonable doubt that the defendant had the intent to cause physical injury to the victim, as required to support the conviction of assault in the second degree (see People v. Newland, 83 A.D.3d 1202, 921 N.Y.S.2d 396 ; People v. Medor, 39 A.D.3d 362, 833 N.Y.S.2d 100 ; People v. Griffin, 24 A.D.3d 972, 805 N.Y.S.2d 482 ; Matter of Jonathan M., 4 A.D.3d 154, 772 N.Y.S.2d 42 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdicts of guilt of burglary in the first degree and assault in the second degree were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). The "decision to request or consent to the submission of a lesser included offense is often based on strategic considerations, taking into account a myriad of factors, including the strength of the People's case" ( People v. McGee, 20 N.Y.3d 513, 519–520, 964 N.Y.S.2d 73, 986 N.E.2d 907 ). The defendant failed to demonstrate a lack of a strategic reason or other legitimate explanation for trial counsel's failure to request that the jury be charged on assault in the third degree as a lesser-included offense of assault in the second degree (see People v. Briskin, 125 A.D.3d 1113, 1122, 3 N.Y.S.3d 200 ; People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800 ; People v. Harris, 97 A.D.3d 1111, 1112, 948 N.Y.S.2d 512 ; People v. Calderon, 66 A.D.3d 314, 884 N.Y.S.2d 29 ; see also People v. Gangaram, 132 A.D.3d 776, 777, 17 N.Y.S.3d 647 ; People v. Casseus, 120 A.D.3d 828, 829–830, 991 N.Y.S.2d 147 ).
Further, since there was no request that the Supreme Court charge the jury on assault in the third degree as a lesser-included offense, "the court's failure to submit such offense does not constitute error" ( CPL 300.50[2] ; see People v. Bailey, 142 A.D.3d 1096, 1097, 37 N.Y.S.3d 592 ).
The defendant's contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial is unpreserved for appellate review, because he did not set forth the issue on the record at the time of sentencing (see People v. Hodge, 154 A.D.3d 963, 63 N.Y.S.3d 448 ; People v. Cole, 140 A.D.3d 1183, 1184, 33 N.Y.S.3d 466 ). In any event, this contention is without merit (see People v. Romero, 101 A.D.3d 906, 907, 955 N.Y.S.2d 214 ). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., COHEN, MALTESE and BARROS, JJ., concur.