PEOPLE v. FAGAN (2008)

 Defendant appeals from a judgment convicting him after a jury trial of, inter alia, assault in the first degree (Penal Law § 120.10 [1] ) and two counts of assault in the second degree (§ 120.05[2] ).   We reject the contention of defendant that County Court erred in denying his request to charge certain reckless assault crimes as lesser included offenses of the intentional assault crimes. The record establishes that, at the charge conference, defense counsel stated that he was not requesting that the court charge any lesser included offenses.   The record further establishes that, following the conclusion of the prosecutor's summation, defense counsel then asked the court to charge the reckless assault crimes in question.   Although defendant's request to charge those lesser included offenses was timely made (see CPL 300.10[5];  People v. Cabrera, 268 A.D.2d 316, 317-318, 701 N.Y.S.2d 402, lv. denied 94 N.Y.2d 945, 710 N.Y.S.2d 2, 731 N.E.2d 619;  People v. McInnis, 179 A.D.2d 781, 782, 579 N.Y.S.2d 144, lv. denied 79 N.Y.2d 997, 1004, 584 N.Y.S.2d 452, 459, 594 N.E.2d 946, 953;  People v. Sztuk, 126 A.D.2d 950, 511 N.Y.S.2d 720, lv. denied 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106;  People v. Hanley, 87 A.D.2d 850, 851, 449 N.Y.S.2d 247), we conclude under the circumstances of this case that the court properly exercised its discretion in determining that such a charge would result in prejudice to the People and would negatively affect the efficient administration of the trial.   We further reject the contention of defendant that defense counsel's failure to request the charge prior to summations deprived him of his right to effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Defendant has failed “ ‘to demonstrate the absence of strategic or other legitimate explanations' for [defense] counsel's alleged shortcomings” (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence.   Viewing the evidence in the light most favorable to the prosecution, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that there is a “ ‘valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime[s] proved beyond a reasonable doubt’ ” (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1, quoting People v. Acosta, 80 N.Y.2d 665, 672, 593 N.Y.S.2d 978, 609 N.E.2d 518).   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally Danielson, 9 N.Y.3d at 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Defendant further contends that the court erred in denying his motion to set aside the verdict pursuant to CPL 330.30(3), which motion was based on the discovery by defendant after the trial that a videotape of his booking procedure had at one time existed.   According to defendant, the videotape would have established that he was intoxicated at the time of the booking procedure.   We reject the contention of defendant that the court erred in denying his motion.   Although the videotape had been destroyed pursuant to standard police policy, we conclude in any event that the videotape, which had no audio component, would have been merely cumulative of the police testimony at trial concerning defendant's intoxication.   It thus cannot be said that the videotape was “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30[3];  see People v. Wright, 43 A.D.3d 1359, 1360, 843 N.Y.S.2d 482, lv. denied 9 N.Y.3d 1011, 850 N.Y.S.2d 399, 880 N.E.2d 885;  People v. McCullough, 275 A.D.2d 1018, 1019, 713 N.Y.S.2d 600, lv. denied 95 N.Y.2d 936, 721 N.Y.S.2d 612, 744 N.E.2d 148).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: