Opinion
1149 KA 18-01267
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Anthony SPENCER, Jr., Also Known as Anthony J. Spencer, Jr., Also Known as Anthony J. Spencer, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN J. MORRISSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of gang assault in the first degree ( Penal Law § 120.07 ) and assault in the first degree (§ 120.10 [1]). We affirm.
Viewing the evidence in light of the elements of the crimes as charged to the jury (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 People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's further contention, County Court properly denied his request for a justification instruction (see People v. McGhee , 4 A.D.3d 485, 486, 772 N.Y.S.2d 344 [2d Dept. 2004], lv denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004] ; see generally People v. Hall , 195 A.D.3d 1574, 1575, 145 N.Y.S.3d 912 [4th Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 788, 178 N.E.3d 435 [2021] ). We reject defendant's four claims of ineffective assistance of counsel (see People v. Harris , 195 A.D.3d 1535, 1537, 145 N.Y.S.3d 891 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 422, 175 N.E.3d 447 [2021] ; People v. Townsend , 171 A.D.3d 1479, 1481, 99 N.Y.S.3d 156 [4th Dept. 2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 656, 130 N.E.3d 1266 [2019] ; People v. Dark , 122 A.D.3d 1321, 1322-1323, 996 N.Y.S.2d 830 [4th Dept. 2014], lv denied 26 N.Y.3d 1039, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015], reconsideration denied 27 N.Y.3d 1068, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2016] ; People v. Betsch , 4 A.D.3d 818, 819, 772 N.Y.S.2d 175 [4th Dept. 2004], lv denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467 [2004], reconsideration denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572 [2004] ). The sentence is not unduly harsh or severe. Defendant's remaining contention is unpreserved for appellate review, and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).