ARCHIBALD, JONATHAN, PEOPLE v ( 2017 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    380
    KA 15-00971
    PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    JONATHAN ARCHIBALD, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
    T. TEXIDO OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Erie County (M.
    William Boller, A.J.), rendered October 29, 2014. The judgment
    convicted defendant, upon a jury verdict, of assault in the second
    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 assault in the second degree (Penal Law
    § 120.05 [2]). Supreme Court sentenced defendant as a persistent
    felony offender to an indeterminate term of incarceration of 15 years
    to life. Defendant contends that the evidence is legally insufficient
    to establish that he possessed a dangerous instrument, i.e., a knife,
    and that he used it intentionally to cause physical injury to the
    victim. We reject that contention. The victim testified that he saw
    defendant with a knife in his hand, and observed and felt defendant
    use the knife to cut him across the face. We note that the victim’s
    testimony is buttressed by videotape and photographic evidence
    depicting defendant holding an elongated shiny object and also
    depicting blood at various locations inside the store where the
    assault had occurred. That evidence is legally sufficient to
    establish defendant’s identity as the assailant and his use of a
    dangerous instrument to intentionally inflict physical injury upon the
    victim (see People v Butler, 140 AD3d 1610, 1610-1611, lv denied 28
    NY3d 969; see also People v Bleakley, 69 NY2d 490, 495). Viewing the
    evidence in light of the elements of the crime as charged to the jury
    (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
    further contention that the verdict is against the weight of the
    evidence (see Butler, 140 AD3d at 1611; see generally Bleakley, 69
    NY2d at 495).
    -2-                           380
    KA 15-00971
    We reject defendant’s further contention that the court erred in
    refusing to charge third-degree assault as a lesser included offense
    of second-degree assault. Although “ ‘it is theoretically impossible
    to commit assault in the second degree under [Penal Law § 120.05 (2)]
    without at the same time committing assault in the third degree under
    [Penal Law § 120.00 (1)]’ ” (People v Smith, 121 AD3d 1568, 1569, lv
    denied 26 NY3d 1150; see People v Fasano, 107 AD2d 1052, 1052; see
    generally CPL 1.20 [37]; People v Glover, 57 NY2d 61, 63-64), here
    there is no reasonable view of the evidence that would support a
    finding that defendant committed the lesser offense but not the
    greater (see Smith, 121 AD3d at 1569; People v Samuels, 113 AD3d 1117,
    1117, lv denied 24 NY3d 964).
    Defendant’s contention that the sentence imposed by the court
    violated his right to be free from cruel and unusual punishment
    pursuant to the Eighth Amendment of the United States Constitution and
    article I, § 5 of the New York Constitution is not preserved for our
    review inasmuch as defendant did not raise it before the sentencing
    court (see People v Ludwig, 104 AD3d 1162, 1164, affd 24 NY3d 221;
    People v Kirk, 96 AD3d 1354, 1359, lv denied 20 NY3d 1012). In any
    event, it is without merit (see Kirk, 96 AD3d at 1359; People v
    Verbitsky, 90 AD3d 1516, 1516, lv denied 19 NY3d 868). We reject
    defendant’s further contention that the sentence is unduly harsh and
    severe.
    Finally, we note that the record does not support defendant’s
    contention that he was deprived of effective assistance of counsel and
    due process because defense counsel and the court allegedly misled him
    about the advisability of going to trial. We note that the record
    does not demonstrate that defendant was offered the opportunity to
    plead guilty in exchange for a sentence less than that ultimately
    imposed. Moreover, the record does not conclusively reveal what
    defendant and his counsel knew about the strengths and weaknesses of
    the People’s case prior to trial, particularly with reference to the
    contents of the videotape, and what impact that knowledge may have had
    on defendant’s decision to go to trial. Because defendant’s
    contentions involve matters outside the record on appeal, they must be
    raised by way of a motion pursuant to CPL article 440 (see People v
    Smith, 145 AD3d 1628, 1630; People v Riley, 117 AD3d 1495, 1496, lv
    denied 24 NY3d 1088; see also People v Thomas, 144 AD3d 1596, 1597).
    We conclude on the record before us that defendant received meaningful
    representation (see generally People v Baldi, 54 NY2d 137, 147).
    Entered:   March 31, 2017                       Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 15-00971

Filed Date: 3/31/2017

Precedential Status: Precedential

Modified Date: 3/31/2017