PEOPLE v. GUANTE (2025)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 2, 2017, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to term of seven years, and order, same court and Justice, entered January 18, 2023, which denied his CPL 440.10 motion to vacate judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 05244 [2024]).  There is no basis for disturbing the jury's credibility determinations or the jury's resolution of the factual issues.

The court providently declined to charge the lesser included offense of assault in the third degree.  Upon examining the record, we find no reasonable view of the evidence that would have supported a finding that defendant committed the lesser offense, but not the greater (People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982]).  There is no dispute that the complainant received numerous injuries from a group of assailants including defendant.  The video clearly shows defendant holding a sharp object and subsequently making a slashing motion towards defendant.

Defendant has not preserved his claims that the court improperly modified its original Sandoval ruling after defendant's direct testimony and that the prosecutor exceeded the bounds of the modified ruling, and we decline to review them in the interest of justice (see People v. Lattimore, 63 A.D.3d 521, 522, 881 N.Y.S.2d 82 [1st Dept. 2009], lv denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 [2009]).  As an alternative holding, we find that defendant opened the door to the modified ruling (see People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41 [1993]), and to the extent that the prosecutor exceeded the bounds of the modified ruling, defendant was not unfairly prejudiced by the prosecutor's questions.

The court properly handled the jury's sixth note as required by CPL 310.30 by reading the note to defense counsel and providing counsel with an opportunity for input into the court's response before addressing the note in open court (see generally People v. O'Rama, 78 N.Y.2d 270, 276–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991]).

We find that defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Counsel's remark during jury selection to a panelist who was originally from Mexico, asking if she “got by the wall okay,” which the trial court characterized as a “poor attempt at humor” [about the president-elect's immigration policies], although ill-advised, did not constitute ineffective assistance.  Nor did counsel render ineffective assistance regarding the Sandoval ruling, the prosecutor's summation, or at sentencing.