PEOPLE v. ROBERTS (2006)

Defendant appeals from a judgment convicting him following a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1] ), assault in the second degree (§ 120.05[2] ) as a lesser included offense of assault in the first degree (§ 120.10[1] ), and criminal possession of a weapon in the second degree (§ 265.03[3] ).   Contrary to the contentions of defendant, the evidence of intent is legally sufficient to support the conviction of attempted murder, and the verdict finding him guilty of that crime is not against the weight of the evidence (see People v. Pagan, 12 A.D.3d 1143, 1144, 784 N.Y.S.2d 815, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142;  see also People v. Switzer, 15 A.D.3d 913, 914, 788 N.Y.S.2d 760, lv. denied 5 N.Y.3d 770, 801 N.Y.S.2d 264, 834 N.E.2d 1274;  People v. Hollenquest, 309 A.D.2d 1159, 766 N.Y.S.2d 275, lv. denied 3 N.Y.3d 707, 785 N.Y.S.2d 34, 818 N.E.2d 676).   Defendant failed to preserve for our review his contention that the verdict is repugnant insofar as the jury found him guilty of attempted murder but not guilty of assault in the first degree (see generally People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247;  People v. Samwell, 287 A.D.2d 663, 731 N.Y.S.2d 747, lv. denied 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   We reject the further contention of defendant that the failure to object to the allegedly repugnant verdict constitutes ineffective assistance of counsel (see People v. Carter, 21 A.D.3d 1295, 1296, 801 N.Y.S.2d 464).   Defendant failed to preserve for our review his contention that County Court penalized him for exercising his right to a jury trial by imposing a sentence greater than that offered as part of the plea bargain (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. White, 12 A.D.3d 1200, 785 N.Y.S.2d 262, lv. denied 4 N.Y.3d 768, 792 N.Y.S.2d 12, 825 N.E.2d 144).   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: