PEOPLE v. PAGAN (2004)

 Defendant appeals from a judgment convicting him following a nonjury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), criminal trespass in the second degree (§ 140.15), and criminal possession of a weapon in the fourth degree (§ 265.01 [2] ).   Contrary to the contention of defendant, County Court properly denied without a hearing his motion pursuant to CPL 330.30, which was based on his alleged difficulty in understanding the English language.  “Where, as here, a defendant is adequately represented by competent counsel, and despite numerous opportunities to do so, fails to inform the court about any inability to understand the English language, he cannot be heard to complain in a collateral attack that his conviction was secured without due process of law” (People v. Ramos, 26 N.Y.2d 272, 274, 309 N.Y.S.2d 906, 258 N.E.2d 197;  see People v. Calizaire, 190 A.D.2d 857, 857-858, 593 N.Y.S.2d 879;  People v. Adamez, 177 A.D.2d 980, 578 N.Y.S.2d 1, lv. denied 79 N.Y.2d 852, 580 N.Y.S.2d 724, 588 N.E.2d 759).   Defendant's contention that defense counsel had a conflict of interest is based on material outside the record, and thus the appropriate procedural vehicle to address that contention is a motion pursuant to CPL 440.10 (see People v. Englert, 285 A.D.2d 987, 727 N.Y.S.2d 680, lv. denied 97 N.Y.2d 655, 737 N.Y.S.2d 56, 762 N.E.2d 934).   Contrary to the further contention of defendant, the evidence of intent, which was inferable from his conduct as well as the surrounding circumstances (see generally People v. Phong T. Le, 277 A.D.2d 1036, 716 N.Y.S.2d 189, lv. denied 96 N.Y.2d 762, 725 N.Y.S.2d 289, 748 N.E.2d 1085;  People v. Henning, 267 A.D.2d 1092, 701 N.Y.S.2d 566, lv. denied 94 N.Y.2d 903, 707 N.Y.S.2d 388, 728 N.E.2d 987;  People v. Moore, 184 A.D.2d 1042, 584 N.Y.S.2d 502, lv. denied 80 N.Y.2d 907, 588 N.Y.S.2d 833, 602 N.E.2d 241), is legally sufficient to support the conviction of attempted murder and the verdict is not against the weight of the evidence with respect to that crime (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: