PEOPLE v. McDANIELS (2005)

Defendant appeals from a judgment convicting him following a jury trial of burglary in the first degree (Penal Law § 140.30[4] ) and attempted assault in the first degree (§§ 110.00, 120.10[1] ).   Defendant contends that Supreme Court erred in charging the jury with respect to attempted assault in the first degree by allegedly instructing the jury that the People had to prove that the victim actually sustained a serious injury.   He thus contends that the evidence is legally insufficient to support the conviction of attempted assault because the People did not in fact establish that the victim sustained a serious injury.

 We reject at the outset defendant's contention that the court erred in its charge.   Generally, in determining whether a jury charge was proper, the test is “whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied” (People v. Ladd, 89 N.Y.2d 893, 895, 653 N.Y.S.2d 259, 675 N.E.2d 1211 [internal quotation marks omitted] ).   Parts of jury charges cannot be read “alone and in a vacuum” (People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134;  see also People v. Remelt, 269 A.D.2d 815, 816, 704 N.Y.S.2d 424, lv. denied 95 N.Y.2d 870, 715 N.Y.S.2d 225, 738 N.E.2d 373).   Here, we conclude that the charge, when read as a whole, “adequately conveyed to the jury the appropriate standard [ ]” (People v. Adams, 69 N.Y.2d 805, 806, 513 N.Y.S.2d 381, 505 N.E.2d 946;  see also People v. East, 284 A.D.2d 962, 963, 728 N.Y.S.2d 608, lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 497, 761 N.E.2d 2), particularly inasmuch as the court stated therein that, in order to be convicted of an attempt to commit a crime, the intended crime need not be completed.

 The further contention of defendant that the evidence is legally insufficient to support the conviction of attempted assault is not preserved for our review because defendant failed to renew his challenge to the sufficiency of the evidence after presenting evidence (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. Cobado, 16 A.D.3d 1114, 792 N.Y.S.2d 753).   In any event, that contention lacks merit.   Although defendant did not fire the shots at issue, he entered the residence wearing a mask and wielding a firearm.   The People established the requisite community of purpose to support defendant's accessorial liability (see People v. Rosario, 199 A.D.2d 92, 93, 605 N.Y.S.2d 53, lv. denied 82 N.Y.2d 930, 610 N.Y.S.2d 182, 632 N.E.2d 492;  see generally People v. Rivera, 84 N.Y.2d 766, 770, 622 N.Y.S.2d 671, 646 N.E.2d 1098).

The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the court did not err in denying defendant's request for youthful offender status (cf. People v. Shrubsall, 167 A.D.2d 929, 930, 562 N.Y.S.2d 290).   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: