PEOPLE v. WASHINGTON (2022)

Judgment, Supreme Court, New York County (Stephen M. Antignani, J.), rendered June 27, 2019, convicting defendant, after a nonjury trial, of attempted murder in the first degree and robbery in the first degree, and sentencing him to an aggregate term of 15 years to life, unanimously affirmed.

Defendant's legal sufficiency claim regarding his attempted murder conviction is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict 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]).  The evidence established attempted first-degree murder under a theory of attempting to cause the victim's death in the course of a robbery.  Defendant's homicidal intent was inferable from his actions, which included stabbing the victim in the back of his neck, and then chasing the injured victim and stabbing him several more times (see People v. Quattrocchi, 190 A.D.3d 653, 653, 139 N.Y.S.3d 215 [1st Dept. 2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 513, 170 N.E.3d 387 [2021]).  The evidence also supports an inference that defendant's actions came dangerously close to causing the victim's death, even though no life-threatening wounds were actually inflicted (see id.).

The court properly denied defendant's motion to suppress evidence derived from his arrest.  There was ample evidence that defendant's arrest was supported by probable cause.  In this robbery of a food delivery worker, defendant's phone number matched the number used to order food for the purpose of luring the victim to the scene of the crime.  In addition, the victim's description of his assailant matched a photograph of defendant that a detective obtained.  Furthermore, the detective testified that this photo also matched the robber's appearance on a surveillance videotape, and under all these circumstances the People were not required to produce the videotape to demonstrate the legality of the police conduct (see People v. Clarkson, 292 A.D.2d 207, 208, 738 N.Y.S.2d 570 [1st Dept. 2002]).

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record, including counsel's reasons for requesting the court in this nonjury trial to consider certain lesser included offenses but not others (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982]).  Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.  In the alternative, 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, 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]).  Defendant has not shown that counsel's failure to request the court to consider the lesser included offenses proposed on appeal fell below an objective standard of reasonableness, or that the court would have granted either of both of those requests, or that upon such consideration it would have reached a different verdict.