People v. McCannPeople v. McCann
Clark, J. Appeals (1) from a judgment of the County Court of Franklin County (Main Jr., J.), rendered May 14, 2012, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, kidnapping in the second degree, criminal use of a firearm in the first degree, assault in the first degree, attempted assault in the first degree and stalking in the first degree, and (2) from a judgment of said court, rendered October 4, 2012, which resentenced defendant on
Following a jury trial, defendant was convicted of attempted murder in the second degree, kidnapping in the second degree, criminal use of a firearm in the first degree, assault in the first degree, attempted assault in the first degree and stalking in the first degree. The charges stemmed from a campaign of harassment against his ex-girlfriend that culminated in him kidnapping and savagely assaulting her. County Court thereafter sentenced defendant, as a second violent felony offender, to an aggregate prison term of 35 years to be followed by five years of postrelease supervision. Defendant appeals from the initial conviction, as well as a resentencing upon the stalking conviction that did not affect his aggregate sentence.
Defendant contends that the verdict was not supported by legally sufficient evidence, but his general motion to dismiss at the close of the People‘s proof left that argument unpreserved for our review (see People v Valverde, 122 AD3d 1074, 1075 [2014]; People v Nichol, 121 AD3d 1174, 1176 [2014]). “Nevertheless, his concomitant claim that the convictions were against the weight of the evidence requires this Court to assess the sufficiency of the evidence as to each element of the crimes” (People v Nichol, 121 AD3d at 1176 [citations omitted]; see People v Danielson, 9 NY3d 342, 349 [2007]). To that end, the victim testified that defendant was verbally and physically abusive while they were dating. In August 2010, the victim told defendant that she did not want to be with him any longer and, shortly thereafter, defendant approached her in a rage, shoved her off of an exercise machine and began screaming at her in public. Defendant then engaged in a campaign of harassment against the victim that lasted several months and included his repeatedly accosting her in public, telephoning and texting her, notwithstanding her telling him in no uncertain terms that she wanted to be left alone. The harassment took a particularly ominous turn in September 2010 when defendant, whom the victim visited in the hopes of reconciling, choked her and threatened to kill her. The victim testified that this course of conduct by defendant left her with a fear of injury, and that fear can only be viewed as a reasonable one (see
Defendant additionally argues that the verdict with regard to the assault in the first degree conviction was against the weight of the evidence because the victim did not sustain a serious physical injury — i.e., one “which creates a substantial risk of death, or which causes death or serious and protracted disfigurement ... or protracted loss or impairment of the function of any bodily organ” — when he placed her in a choke hold on October 5, 2010 (
We do find that the conviction for attempted assault in the first degree cannot stand. Defendant was charged under the theory that, during the course of the kidnapping, he attempted to cause serious physical injury when he choked the victim a second time after she made an abortive effort to get help (see
Defendant next contends that his statement to investigators should have been suppressed because a martial arts instructor he requested to be with him during the interrogation — who also happened to be a detective sergeant with the St. Lawrence County Sheriff‘s Department — induced him to confess. County Court appropriately found that the instructor was not acting as an agent of the police and, in any event, defendant was administered Miranda warnings before the interrogation began
Contrary to defendant‘s further argument, he was not deprived of the effective assistance of counsel due to his representation by the Franklin County Public Defender, an office that had previously represented a jailhouse informant testifying for the People. While that situation constitutes a potential conflict of interest, defendant will not prevail unless he can further show that the potential conflict affected the conduct of his defense in some way (see People v Sanchez, 21 NY3d 216, 222-223 [2013]; People v Harris, 99 NY2d 202, 211 [2002]; People v Ortiz, 76 NY2d 652, 656-657 [1990]). Defendant has failed to make that showing, as the witness waived his attorney-client privilege for purposes of cross-examination and, indeed, was vigorously cross-examined (see People v Harris, 99 NY2d at 211; People v Robles, 115 AD3d 30, 36-37 [2014], lv denied 22 NY3d 1202 [2014]).1 Defendant correctly points out that County Court did not ensure that “he understood the risks that may be involved with respect to the potential conflict, [but] the failure to make such an inquiry does not constitute reversible error because defendant has not established that the potential conflict of interest bore a substantial relation to the conduct of the defense” (People v Hurlbert, 81 AD3d 1430, 1431 [2011], lv denied 16 NY3d 896 [2011] [internal quotation marks and citations omitted]; see People v Jenkins, 256 AD2d 735, 736-737 [1998], lv denied 93 NY2d 854 [1999]).
Defendant lastly argues that the aggregate prison sentence imposed — which is 20 years in the absence of the conviction for attempted assault in the first degree — is harsh and excessive. Based upon our review of the record, however, we perceive neither an abuse of discretion nor the existence of any extraordinary circumstances that would warrant a reduction in the sentence (see People v Hartman, 86 AD3d 711, 713 [2011], lv
We have examined defendant‘s remaining claims and find them to be unpersuasive.
Lahtinen, J.P., Garry and Devine, JJ., concur. Ordered that the judgment rendered May 14, 2012 is modified, on the law, by reversing defendant‘s conviction of attempted assault in the first degree under count 6 of the indictment; said count dismissed and the sentence imposed thereon vacated; and, as so modified, affirmed. Ordered that the judgment rendered October 4, 2012 is affirmed.