Opinion
790 KA 19-00797
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Leon G. ROACH, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of attempted assault in the second degree and dismissing count one of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial of, inter alia, attempted assault in the second degree ( Penal Law §§ 110.00, 120.05 [1] ), attempted assault in the first degree ( §§ 110.00, 120.10 [1] ), and assault in the second degree ( § 120.05 [2] ). We previously held this case, reserved decision, and remitted the matter to County Court for a ruling on defendant's motion for a trial order of dismissal, on which the court had reserved decision but failed to rule ( People v. Roach , 213 A.D.3d 1274, 1274, 181 N.Y.S.3d 505 [4th Dept. 2023] ). Upon remittal, the court denied the motion. Contrary to defendant's contention, we conclude that his conviction on the challenged counts is supported by legally sufficient evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Further, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
As defendant contends and the People correctly concede, however, as charged here, attempted assault in the second degree is a lesser included offense of attempted assault in the first degree (see People v. Argueta , 194 A.D.3d 857, 860, 149 N.Y.S.3d 104 [2d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 680, 172 N.E.3d 792 [2021] ), and thus should have been considered only in the alternative as a lesser inclusory concurrent count of attempted assault in the first degree (see CPL 300.40 [3] [b] ; People v. Hamm , 96 A.D.3d 1482, 1483-1484, 946 N.Y.S.2d 745 [4th Dept. 2012], affd 21 N.Y.3d 708, 977 N.Y.S.2d 672, 999 N.E.2d 1117 [2013] ; People v. Johnson , 81 A.D.3d 1428, 1429, 917 N.Y.S.2d 487 [4th Dept. 2011], lv denied 16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979 [2011] ). We therefore modify the judgment accordingly. The sentence is not otherwise unduly harsh or severe.