THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOSEPH HOLT DEFENDANT APPELLANT (2012)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[3] ) and assault in the third degree (§ 120.00[1] ).   Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence supporting the conviction of assault in the second degree inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, rearg. denied 97 N.Y.2d 678).   In any event, we reject defendant's contention that the evidence is legally insufficient to establish the element of intent with respect to that crime (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   It is well established that “[i]ntent may be inferred from conduct as well as the surrounding circumstances” (People v. Steinberg, 79 N.Y.2d 673, 682;  see People v. Smith, 79 N.Y.2d 309, 315).   Viewing the evidence in light of the elements of the crime of assault in the second degree as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict with respect to that crime is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

Defendant further contends that he was denied effective assistance of counsel based solely on defense counsel's failure to renew the motion for a trial order of dismissal with respect to the count of assault in the second degree.   We reject that contention.   Here, inasmuch as we have concluded that the evidence is legally sufficient to support the conviction of that count, it cannot be said that defense counsel's failure to renew the motion with respect thereto constitutes ineffective assistance of counsel (see People v. Washington, 60 AD3d 1454, lv denied 12 NY3d 922;  see generally People v. Baldi, 54 N.Y.2d 137, 147).   Defendant's challenge to the legal sufficiency of the evidence before the grand jury is not properly before us.  “It is well settled that, ‘when a judgment of conviction has been rendered based upon legally sufficient trial evidence, appellate review of a claim alleging insufficiency of [g]rand [j]ury evidence is barred’ “ (People v. Bastian, 294 A.D.2d 882, 883, lv denied 98 N.Y.2d 694, quoting People v. Wiggins, 89 N.Y.2d 872, 874;  see CPL 210.30[6] ).   We have reviewed defendant's remaining contention and conclude that it is without merit.

Frances E. Cafarell

Clerk of the Court