Opinion
KA 03-00906.
Decided April 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered December 7, 2001. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05). We reject the contention of defendant that he was denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147). For the reasons set forth in our decision in the appeal of a codefendant with whom defendant was jointly tried ( People v. Davis, 6 A.D.3d 1168 [Apr. 30, 2004]), we further reject the contentions of defendant that he was denied his right to a fair trial when Supreme Court discharged a juror and that the verdict is against the weight of the evidence. Defendant failed to preserve for our review his contention that the conviction of assault is not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19), and we conclude that the sentence is not unduly harsh or severe.