PEOPLE v. ANDERSON (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered October 15, 2015, convicting him of attempted assault in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with various crimes after he hit the complainant in the head with a baseball bat.  After a jury trial, the defendant was convicted of attempted assault in the first degree and assault in the second degree.

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 of attempted assault in the first degree.  Specifically, and contrary to the defendant's contention, the evidence was legally sufficient to establish that the defendant intended to cause serious physical injury (see Penal Law §§ 10.00[10];  110.00, 120.10[1], People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094;  People v. Newman, 153 A.D.3d 639, 639, 57 N.Y.S.3d 412;  People v. Ekwegbalu, 131 A.D.3d 982, 984, 15 N.Y.S.3d 847;  People v. Hildenbrandt, 125 A.D.2d 819, 820, 509 N.Y.S.2d 919).  Next, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilty on the count of attempted assault in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant contends that the charge of assault in the second degree (Penal Law § 120.05[2] ) should have been deemed dismissed as an inclusory concurrent count when the jury convicted him of attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1] ).  That contention is without merit.  Since it is possible to commit attempted assault in the first degree without committing assault in the second degree, assault in the second degree is not an inclusory concurrent count of attempted assault in the first degree (see CPL 300.30[3];  300.40[3][b];  People v. Leon, 7 N.Y.3d 109, 112, 817 N.Y.S.2d 619, 850 N.E.2d 666;  People v. Abrew, 95 N.Y.2d 806, 808–809, 710 N.Y.S.2d 833, 732 N.E.2d 940).

Viewing the record as a whole, we find that the defendant was provided with meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

BALKIN, J.P., AUSTIN, ROMAN and SGROI, JJ., concur.