People v. Smith

Jan 9, 2007
Versions:36 A.D.3d 633
825 N.Y.S.2d 918

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered September 28, 2004, convicting him of assault in the first degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant‘s claim that his intoxication precluded him from forming the intent required to commit the crimes of which he was convicted is unpreserved for appellate review, as he did not request an intoxication charge or object when the court did not give such a charge (see CPL 470.05 [2]; People v Dorst, 194 AD2d 622 [1993]; People v Angel, 185 AD2d 356 [1992]). In any event, the trial court did not err in failing to give an intoxication instruction to the jury (see Penal Law § 15.25). Such an instruction need not be given where, as here, the evidence of alcohol consumption was minimal and no reasonable person would have entertained a doubt as to the element of intent on that basis (see People v Gaines, 83 NY2d 925, 927 [1994]; People v Rodriguez, 76 NY2d 918, 921 [1990]; People v Perry, 61 NY2d 849, 850 [1984]; People v Salco, 302 AD2d 613 [2003]).

The defendant‘s remaining contentions are unpreserved for appellate review and, in any event, are without merit. Mastro, J.P., Florio, Fisher and Dillon, JJ., concur.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v THOMAS SMITH, Appellant. [825 NYS2d 918]—Appeal by the defendant, by permission, from an order of the County Court, Rockland County (Resnik, J.), dated July 19, 2005, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered September 28, 2004, convicting him of assault in the first degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

The County Court properly denied the defendant‘s motion pursuant to CPL 440.10 to vacate his judgment of conviction on the ground that he was denied the effective assistance of counsel. The defendant‘s contention that his attorney should have moved to dismiss the indictment because he did not receive a speedy trial could have been raised on direct appeal from the judgment and, accordingly, the County Court was required to deny that branch of the motion (see CPL 440.10 [2]; People v Cooks, 67 NY2d 100 [1986]; People v Hall, 28 AD3d 678 [2006], lv denied 7 NY3d 867 [2006]; People v Williams, 5 AD3d 407 [2004]).

In any event, the defendant was not denied the effective assistance of counsel. Mastro, J.P., Florio, Fisher and Dillon, JJ., concur.