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.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered April 6, 2018. The judgment convicted defendant, upon a jury verdict, of gang assault in the first degree and assault in the first degree.
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 [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 [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 [2d Dept 2004], lv denied 2 N.Y.3d 803 [2004]; see generally People v Hall, 195 A.D.3d 1574, 1575 [4th Dept 2021], lv denied 37 N.Y.3d 1096 [2021]). We reject defendant's four claims of ineffective assistance of counsel (see People v Harris, 195 A.D.3d 1535, 1537 [4th Dept 2021], lv denied 37 N.Y.3d 1027 [2021]; People v Townsend, 171 A.D.3d 1479, 1481 [4th Dept 2019], lv denied 33 N.Y.3d 1109 [2019]; People v Dark, 122 A.D.3d 1321, 1322-1323 [4th Dept 2014], lv denied 26 N.Y.3d 1039 [2015], reconsideration denied 27 N.Y.3d 1068 [2016]; People v Betsch, 4 A.D.3d 818, 819 [4th Dept 2004], lv denied 2 N.Y.3d 796 [2004], reconsideration denied 3 N.Y.3d 657 [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]).