Opinion
91 KA 14-01328.
02-11-2016
The PEOPLE of the State of New York, Respondent, v. Vernon THOMAS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Vernon Thomas, Defendant–Appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.
Vernon Thomas, Defendant–Appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of attempted assault in the first degree (Penal Law §§ 110.00, 120.101 ). Defendant failed to preserve for our review his contention that his conviction is not supported by legally sufficient evidence, inasmuch as he moved for a trial order of dismissal on a ground different from that raised on appeal (see People v. Scott, 61 A.D.3d 1348, 1349, 877 N.Y.S.2d 536, lv. denied 12 N.Y.3d 920, 884 N.Y.S.2d 701, 912 N.E.2d 1082,reconsideration denied 13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444). In any event, we reject defendant's present contention. By throwing gasoline on the victim and threatening to burn her while he held a lighter in his hand, defendant went “beyond mere preparation to the point that his conduct was potentially and immediately dangerous” (People v. Denson, 26 N.Y.3d 179, 192, 21 N.Y.S.3d 179, 42 N.E.3d 676; see People v. Davis, 83 A.D.3d 1492, 1492, 924 N.Y.S.2d 229, lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94, reconsideration denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162; see also People v. Adams, 222 A.D.2d 1124, 1124, 635 N.Y.S.2d 906, lv. denied 87 N.Y.2d 1016, 644 N.Y.S.2d 150, 666 N.E.2d 1064). Viewing the evidence in light of the elements of the crime 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), we conclude that the verdict is not 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).
We conclude that any error in Supreme Court's Sandoval ruling is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see People v. Grant, 7 N.Y.3d 421, 424–425, 823 N.Y.S.2d 757, 857 N.E.2d 52). Contrary to defendant's further contention, we conclude that the court properly allowed the People to present evidence that he engaged in uncharged criminal conduct immediately before and after the attempted assault. That evidence was properly admitted “to complete the narrative of the events charged in the indictment” (People v. Leeson, 48 A.D.3d 1294, 1296, 850 N.Y.S.2d 815, affd. 12 N.Y.3d 823, 880 N.Y.S.2d 895, 908 N.E.2d 885) and, in any event, the court provided the jury with an appropriate limiting instruction, thereby minimizing any potential prejudice to defendant (see People v. Bassett, 55 A.D.3d 1434, 1436, 866 N.Y.S.2d 473, lv. denied 11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441). We reject defendant's contention that he was denied effective assistance of counsel based upon his attorney's failure to cross-examine the People's domestic violence trauma expert (see People v. Philbert, 267 A.D.2d 607, 607–608, 700 N.Y.S.2d 243, lv. denied 94 N.Y.2d 905, 707 N.Y.S.2d 390, 728 N.E.2d 989; People v. Almanzar, 188 A.D.2d 654, 655, 591 N.Y.S.2d 847, lv. denied 81 N.Y.2d 881, 597 N.Y.S.2d 942, 613 N.E.2d 974). Contrary to defendant's further contention, the court properly denied his motion to set aside the verdict pursuant to CPL 330.30(3) without conducting a hearing. Defendant failed to show that the allegedly new evidence could not have been discovered earlier in the exercise of reasonable diligence (see People v. Sterina, 108 A.D.3d 1088, 1091, 968 N.Y.S.2d 296), nor in any event did he show that it was “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.303; see People v. Simon, 71 A.D.3d 1574, 1576, 897 N.Y.S.2d 578, lv. denied 15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229, reconsideration denied 15 N.Y.3d 856, 909 N.Y.S.2d 33, 935 N.E.2d 825). The sentence is not unduly harsh or severe.
We have examined defendant's contentions in his pro se supplemental brief and conclude that none requires reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.