THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LEON ROACH DEFENDANT APPELLANT (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of attempted assault in the second degree and dismissing count one of the indictment and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a bench trial of, inter alia, attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [1]), attempted assault in the first degree (§§ 110.00, 120.10 [1]), and assault in the second degree (§ 120.05 [2]). We previously held this case, reserved decision, and remitted the matter to County Court for a ruling on defendant's motion for a trial order of dismissal, on which the court had reserved decision but failed to rule (People v Roach, 213 AD3d 1274, 1274 [4th Dept 2023]). Upon remittal, the court denied the motion. Contrary to defendant's contention, we conclude that his conviction on the challenged counts is supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Further, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).

As defendant contends and the People correctly concede, however, as charged here, attempted assault in the second degree is a lesser included offense of attempted assault in the first degree (see People v Argueta, 194 AD3d 857, 860 [2d Dept 2021], lv denied 37 NY3d 970 [2021]), and thus should have been considered only in the alternative as a lesser inclusory concurrent count of attempted assault in the first degree (see CPL 300.40 [3] [b]; People v Hamm, 96 AD3d 1482, 1483-1484 [4th Dept 2012], affd 21 NY3d 708 [2013]; People v Johnson, 81 AD3d 1428, 1429 [4th Dept 2011], lv denied 16 NY3d 896 [2011]). We therefore modify the judgment accordingly. The sentence is not otherwise unduly harsh or severe.

Entered: November 17, 2023

Ann Dillon Flynn

Clerk of the Court