Opinion
2013-09-11
The PEOPLE, etc., respondent, v. Juan MIGHTY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara and Kendra L. Hutchinson of counsel), for appellant. *55Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jessica M. McNamara and Kendra L. Hutchinson of counsel), for appellant. *55Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Kron, J.), rendered July 15, 2010, and (2) an amended judgment of the same court (Griffin, J.), rendered July 28, 2010, convicting him of attempted assault in the first degree, assault in the second degree (two counts), assault in the third degree (two counts), and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the appeal from the judgment rendered July 15, 2010, is dismissed, as that judgment was superseded by the amended judgment rendered July 28, 2010; and it is further,
ORDERED that the amended judgment is modified, on the law, by reducing the defendant's conviction of assault in the third degree under count eight of the indictment to attempted assault in the third degree, and vacating the sentence imposed thereon; as so modified, the amended judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of attempted assault in the first degree beyond a reasonable doubt ( see People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039;People v. Andrews, 78 A.D.3d 1229, 1230–1231, 911 N.Y.S.2d 221). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to that count was 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).
However, we agree with the defendant that the evidence was not legally sufficient to establish his guilt of assault in the third degree under count eight of the indictment ( see People v. Cheeks, 161 A.D.2d 657, 555 N.Y.S.2d 433). Nevertheless, the evidence was legally sufficient to establish his guilt of the lesser-included offense of attempted assault in the third degree ( see CPL 470.15[2][a]; People v. Woodford, 259 A.D.2d 717, 688 N.Y.S.2d 167).
The defendant's contention that certain counts were multiplicitous is unpreserved for appellate review and, in any event, without merit ( see People v. Smalls, 81 A.D.3d 860, 861, 916 N.Y.S.2d 647).
The defendant's remaining contention is without merit.
As the defendant has already served in excess of the maximum term for attempted assault in the third degree, there is no need to remit the matter for resentencing ( see People v. Woodford, 259 A.D.2d at 717–718, 688 N.Y.S.2d 167).