PEOPLE v. GREEN (2026)

Judgment, Supreme Court, New York County (Cori H. Weston, J.), rendered July 13, 2022, convicting defendant, after a jury trial, of assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 13 years, unanimously affirmed.

Judgment of resentence, same court (Kate Paek, J.), rendered July 8, 2024, resentencing defendant to an aggregate term of 31/212 years, upon his conviction, same court (Edward J. McLaughlin, J.), rendered October 27, 2015, upon his pleas of guilty, of gang assault in the second degree and conspiracy in the fourth degree, unanimously affirmed.

The court properly declined to instruct the jury on the lesser included offense of assault in the second degree because there was no reasonable view of the evidence, viewed most favorably to defendant, that the victim did not sustain a “protracted impairment of health” sufficient to constitute serious physical injury (see Penal Law §§ 10.00[10], 120.10[1], 120.05[2]).  The victim testified about the pain and physical limitations she suffered for months after the shooting, and her testimony was amply corroborated by the medical records (see People v. Marquez, 49 A.D.3d 451, 451, 853 N.Y.S.2d 553 [1st Dept. 2008], lv denied 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 [2008];  People v. McDuffie, 293 A.D.2d 287, 740 N.Y.S.2d 48 [1st Dept. 2002], lv denied 98 N.Y.2d 699, 747 N.Y.S.2d 418, 776 N.E.2d 7 [2002]).  “[N]othing in the statute limits ‘protracted’ impairments to those that are permanent or measured in years” (People v. Herrera, 202 A.D.3d 517, 519, 162 N.Y.S.3d 61 [2022], lv denied 38 N.Y.3d 1134, 172 N.Y.S.3d 845, 193 N.E.3d 510 [2022] [internal quotation marks omitted]).  Moreover, the record reflects that the victim continued to suffer weakness and a limited range of motion at the time of trial, about two years later (see People v. Graham, 297 A.D.2d 579, 580, 747 N.Y.S.2d 171 [1st Dept. 2002], lv denied 99 N.Y.2d 535, 752 N.Y.S.2d 596, 782 N.E.2d 574 [2002]).

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (People v. Mora, 290 A.D.2d 373, 373–374, 737 N.Y.S.2d 71 [1st Dept. 2002], lv denied 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841 [2002]).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.  To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant has not shown that counsel took a position adverse to defendant (see People v. Fredericks, 43 N.Y.3d 551, 560, 238 N.Y.S.3d 133, 264 N.E.3d 1264 [2025]), or that any potential conflict of interest operated on the defense (see People v. Ortiz, 76 N.Y.2d 652, 655–656, 563 N.Y.S.2d 20, 564 N.E.2d 630 [1990];  People v. Silva, 15 A.D.3d 263, 263, 790 N.Y.S.2d 436 [1st Dept. 2005], lv denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330 [2005]).

We perceive no basis for reducing the sentence.

With respect to the judgment of resentence, the court providently exercised its discretion in denying youthful offender treatment (see generally People v. Anthony C., 25 N.Y.3d 937, 938, 6 N.Y.S.3d 226, 29 N.E.3d 235 [2015]).  The underlying crimes were serious, involving multiple instances of violent gang-related activity (see People v. Johnson, 226 A.D.3d 597, 207 N.Y.S.3d 532 [1st Dept. 2024], lv denied 42 N.Y.3d 928, 216 N.Y.S.3d 91, 240 N.E.3d 810 [2024]), and in the years before his resentencing, defendant committed an additional violent felony offense, causing the victim to sustain serious physical injury (see People v. Ortiz, 168 A.D.3d 463, 89 N.Y.S.3d 622 [1st Dept. 2019], lv denied 33 N.Y.3d 952, 100 N.Y.S.3d 188, 123 N.E.3d 847 [2019]).  We perceive no basis to substitute a youthful offender adjudication in the interest of justice.