PEOPLE v. KOWAL (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting her, upon a jury verdict, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (§ 120.10[1] ), and two counts of burglary in the first degree (§ 140.30[2], [3] ).  Defendant's contention that the evidence is legally insufficient to support her conviction of attempted murder in the second degree and burglary in the first degree is not preserved for our review inasmuch as her general motion for a trial order of dismissal was not “ ‘specifically directed’ at” the alleged shortcomings in the evidence raised on appeal (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).  Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes of attempted murder and burglary as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence with respect to those crimes (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

We reject defendant's contention that defense counsel was ineffective for failing to object to County Court's charge in which it used the phrase “personally or by acting in concert” with respect to the attempted murder count, even though the indictment used only the phrase “acting in concert” in that count.  It is well settled that “[t]here is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution” (People v. Duncan, 46 N.Y.2d 74, 79–80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978], rearg. denied 46 N.Y.2d 940, 415 N.Y.S.2d 1027, 388 N.E.2d 372 [1979], cert denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 [1979], rearg dismissed 56 N.Y.2d 646, 450 N.Y.S.2d 1026, 436 N.E.2d 196 [1982] ).  Furthermore, “[a]n indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime” (People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ), and the same is true where, as here, the defendant is originally charged only as an accomplice.  Thus, we conclude that defense counsel was not ineffective inasmuch as “ ‘the jury was properly instructed concerning both theories based upon the evidence adduced at trial’ ” (People v. Young, 55 A.D.3d 1234, 1235, 864 N.Y.S.2d 584 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008] ).

Contrary to defendant's further contention, the sentence is not unduly harsh or severe.  Finally, we note that the certificate of conviction in the stipulated record on appeal incorrectly recites that defendant is a second felony offender and that a 12–year order of protection was issued.  The certificate of conviction therefore must be amended to remove any reference thereto (see generally People v. Young, 74 A.D.3d 1864, 1865, 901 N.Y.S.2d 556 [4th Dept. 2010], lv denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010] ).

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

Memorandum: