PEOPLE v. REMY (2005)

Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County (Katz, J.), rendered September 8, 2003, convicting him of assault in the first degree (two counts), aggravated assault on a peace officer, assault in the second degree (three counts), criminal contempt in the second degree (two counts), resisting arrest, and obstructing governmental administration in the second degree, upon a jury verdict, and imposing sentence and (2), by permission, from an order of the same court dated August 26, 2004, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment and the order are affirmed.

 The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to support his convictions of assault in the first degree (Penal Law § 120.10[1] ), and aggravated assault upon a peace officer (Penal Law § 120.11;  see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   The evidence presented by the prosecution was sufficient to establish that the defendant used a dangerous instrument (see Penal Law § 10.00[13];  People v. Carter, 53 N.Y.2d 113, 440 N.Y.S.2d 607, 423 N.E.2d 30) to intentionally cause serious physical injury (see People v. Goode, 216 A.D.2d 579, 628 N.Y.S.2d 575;  People v. Cole, 188 A.D.2d 482, 592 N.Y.S.2d 599).

 The Supreme Court properly denied the defendant's motion to vacate the judgment of conviction on the ground of ineffective assistance of counsel.   The defendant failed to establish that there were no strategic or other legitimate explanations for counsel's decision not to pursue a diminished capacity defense (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584), or that he was deprived of meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Thus, the Supreme Court properly denied the defendant's motion pursuant to CPL 440.10 without a hearing (see People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).