Opinion
2011-06504
05-13-2015
The PEOPLE, etc., respondent, v. Stephen ROBERTS, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Jennifer Hagan, and William Branigan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Jennifer Hagan, and William Branigan of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, THOMAS A. DICKERSON, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered July 1, 2011, convicting him of attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the defendant's conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence with respect to his conviction of attempted assault in the first degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, 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 that the defendant attempted to seriously and permanently disfigure the complainant (see Penal Law §§ 110.00, 120.10[1] ; 10.00[10]; People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694 ; People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ; People v. Ragguete, 120 A.D.3d 717, 718, 991 N.Y.S.2d 131 ; People v. Serrano, 74 A.D.3d 1104, 1105–1106, 904 N.Y.S.2d 711 ; People v. Malcolm, 74 A.D.3d 1483, 902 N.Y.S.2d 264 ; People v. Samwell, 287 A.D.2d 663, 731 N.Y.S.2d 747 ).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt on this 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 ).
Similarly unavailing are the defendant's contentions regarding ineffective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ), and his sentencing as a persistent violent felony offender (see People v. Boyer, 22 N.Y.3d 15, 977 N.Y.S.2d 731, 999 N.E.2d 1176 ; People v. Naughton, 93 A.D.3d 809, 940 N.Y.S.2d 667 ). The defendant's challenge to the accuracy of the pre-sentence investigation report, raised in his pro se supplemental brief, is not properly before this Court (see Matter of Antonucci v. Nelson, 298 A.D.2d 388, 751 N.Y.S.2d 395 ; People v. Harris, 187 Misc.2d 591, 592, 725 N.Y.S.2d 530 [Sup.Ct., Kings County] ; see e.g. People v. Serrano, 81 A.D.3d 753, 754, 916 N.Y.S.2d 509 ). The defendant's claim of ineffective assistance of appellate counsel, also raised in his pro se supplemental brief, cannot, under the circumstances, be reviewed by this Court on direct appeal (see People v. Bachert, 69 N.Y.2d 593, 595–596, 516 N.Y.S.2d 623, 509 N.E.2d 318 ; People v. Oppenheimer, 240 A.D.2d 437, 438, 658 N.Y.S.2d 1014 ).
However, as the People correctly concede, the People were improperly permitted to amend the count of the indictment alleging assault in the second degree (see CPL 200.70[2] ; People v. Perez, 83 N.Y.2d 269, 609 N.Y.S.2d 564, 631 N.E.2d 570 ; People v. Boula, 106 A.D.3d 1371, 1373, 966 N.Y.S.2d 259 ). Therefore, the defendant's conviction of assault in the second degree is vacated, the sentence imposed thereon is vacated, and that count of the indictment is dismissed.