PEOPLE v. CARTER (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[3] ) and assault in the second degree (§ 120.05[1] ).   Defendant failed to preserve for our review his contention that reversal is required because the jury charge was inconsistent (see People v. Bryant, 13 A.D.3d 1170, 1171, 787 N.Y.S.2d 540, lv. denied 4 N.Y.3d 884, 798 N.Y.S.2d 729, 831 N.E.2d 974;  see generally People v. Highsmith, 254 A.D.2d 768, 769, 679 N.Y.S.2d 758, lv. denied 92 N.Y.2d 983, 683 N.Y.S.2d 764, 706 N.E.2d 752), 92 N.Y.2d 1033, 684 N.Y.S.2d 498, 707 N.E.2d 453, 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] ).   By failing to object to the verdict on the ground of repugnancy before the jury was discharged, defendant also failed to preserve for our review his present contention that the verdict is repugnant (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  Bryant, 13 A.D.3d at 1171, 787 N.Y.S.2d 540;  People v. Hooper, 288 A.D.2d 948, 732 N.Y.S.2d 207, lv. denied 97 N.Y.2d 755, 742 N.Y.S.2d 615, 769 N.E.2d 361).   In any event, that contention is without merit.   Here, “defendant could certainly intend one result-serious physical injury [to the victim]-while recklessly creating a grave risk that a different, more serious result-death-would ensue from his actions” (People v. Trappier, 87 N.Y.2d 55, 59, 637 N.Y.S.2d 352, 660 N.E.2d 1131;  see People v. Belcher, 289 A.D.2d 1039, 735 N.Y.S.2d 299, lv. denied 97 N.Y.2d 751, 742 N.Y.S.2d 611, 769 N.E.2d 357).   We reject the further contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to object to the allegedly inconsistent charge and to the allegedly repugnant verdict. “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to [object to the charge and the verdict],” and defendant failed to do so here (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see People v. Taylor, 1 N.Y.3d 174, 177, 770 N.Y.S.2d 711, 802 N.E.2d 1109).

 The generalized motion of defendant to dismiss at the close of the People's case did not preserve for our review his present contention concerning the alleged legal insufficiency of the evidence to support the conviction of assault in the first degree (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), and his contention also is not properly before us because he failed to renew his motion after the close of his proof (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Williams, 17 A.D.3d 1043, 1045, 794 N.Y.S.2d 197;  People v. Harrison, 2 A.D.3d 1454, 769 N.Y.S.2d 436, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919). In any event, defendant's contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “[A] single vicious beating under the circumstances of this case is legally sufficient to establish that defendant's conduct evinced a depraved indifference to human life” (People v. East, 284 A.D.2d 962, 962, 728 N.Y.S.2d 608, lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 497, 761 N.E.2d 2).   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: