PEOPLE v. CARTER (2006)

Court of Appeals of New York.

The PEOPLE of the State of New York, Respondent, v. Natsu CARTER, Appellant.

Decided: November 16, 2006

David P. Elkovitch, Auburn, for appellant. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

Defendant was convicted of assault in the first degree (Penal Law § 120.10 [3] ) and assault in the second degree (Penal Law § 120.05[1] ). To convict him of the first of these crimes, the jury had to find that he recklessly engaged in conduct that created a grave risk of death to another person; to convict him of the second, it had to find that he intended to cause serious physical injury to another person. Defendant claims that he could not consistently be convicted of both charges, and that therefore the court erred in failing to submit them to the jury as alternatives. Defendant failed to preserve this argument at trial, however; he neither objected to the charge nor challenged the verdict as repugnant.

We reject as without merit defendant's contention that no preservation was necessary. The asserted error was not one that affects the organization of the court or the mode of proceedings prescribed by law (see e.g. People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280 [1985] ). We also reject defendant's contention that his trial counsel was ineffective for failing to preserve the issue. Trial counsel might have made an argument based on People v. Robinson, 145 A.D.2d 184, 538 N.Y.S.2d 122 (1989), affd. 75 N.Y.2d 879, 554 N.Y.S.2d 473, 553 N.E.2d 1021 (1990), but in light of our later decision in People v. Trappier, 87 N.Y.2d 55, 637 N.Y.S.2d 352, 660 N.E.2d 1131 (1995) that argument was not so compelling that a failure to make it amounted to ineffective assistance of counsel (see People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ). We express no opinion on whether the argument, if made, would have been successful.

Defendant's argument that the evidence was insufficient to support the verdict is unpreserved.

Order affirmed in a memorandum.

MEMORANDUM.

Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ and SMITH concur. Judge PIGOTT taking no part.

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