PEOPLE v. VUKEL

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Joseph VUKEL, a/k/a Joseph Vokel, Defendant-Appellant.

Decided: July 22, 1999

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI, LERNER and BUCKLEY, JJ. David A. Shimkin, for Respondent. Bennett M. Epstein, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), entered September 10, 1998, convicting defendant, after a jury trial, of attempted murder in the second degree and assault in the second degree, and sentencing him to concurrent terms of 3 to 9 years, unanimously modified, on the law, to the extent of reducing the sentence on the conviction of assault in the second degree to a term of 2 1/313 to 7 years, and otherwise affirmed.

 Since defendant's attack on the sufficiency of the evidence supporting the attempted murder conviction was asserted for the first time in a motion to set aside the verdict, it is unpreserved (People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the verdict was based on legally sufficient evidence.   We further find that the verdict was not against the weight of the evidence.   There was ample evidence from which the jury could infer homicidal intent, including defendant's repeated blows to the victim's head and body with the baseball bat.

 Since defendant's ineffective assistance claim involves matters of trial strategy, it would require a CPL 440.10 motion in order to amplify the record.   On the existing record, we find no pattern of ineffective assistance (see, People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).   Specifically, on the facts presented at trial, which, when viewed most favorably to defendant, suggested, at most, justifiable use of non-deadly physical force (see, People v. Torres, 252 A.D.2d 60, 686 N.Y.S.2d 375), it was sound strategy for counsel to refrain from raising a weak justification defense in order to concentrate, instead, on other defenses (see, People v. Castano, 236 A.D.2d 215, 654 N.Y.S.2d 7, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 864, 681 N.E.2d 1311;  People v. Douglas, 160 A.D.2d 1015, 1016, 554 N.Y.S.2d 727, lv. denied 76 N.Y.2d 855, 560 N.Y.S.2d 995, 561 N.E.2d 895).   Accordingly, we also reject defendant's claim that the court should have delivered a justification charge sua sponte.   Such action would have unlawfully interfered with defense strategy (see, People v. DeGina, 72 N.Y.2d 768, 537 N.Y.S.2d 8, 533 N.E.2d 1037), and would, in any event, have been unsupported by the evidence (People v. Torres, supra ).

 We conclude that defendant's motions for dismissal pursuant to CPL 30.30 were properly denied insofar as the People did not exceed the remaining 66 days in which to be ready for trial following this Court's reversal of the original dismissal of the indictment on speedy trial grounds (230 A.D.2d 635, 646 N.Y.S.2d 269, lv. denied 89 N.Y.2d 931, 654 N.Y.S.2d 733, 677 N.E.2d 305).   Specifically, the period between December 19, 1996 and April 3, 1997 was properly excluded as time resulting from an appeal (CPL 30.30[4] [a] ).   This adjournment was ordered by the trial court for control purposes because of the pendency of defendant's application for leave to appeal to the Court of Appeals from this Court's order reinstating the indictment.   However, the trial court and parties were unaware that on the same date of this adjournment, December 19, 1996, leave to appeal had been denied, rendering the adjournment unnecessary.   We reject defendant's argument that the People had an obligation to advance the case to an earlier date upon receiving the certificate denying leave, and we find that this delay cannot be viewed as attributable to the People.   The period from May 21, 1997 through July 2, 1997 is excludable as a reasonable period resulting from defendant's speedy trial motion and the delay occasioned by the court reporters in furnishing minutes (see, People v. Lacey, 260 A.D.2d 309, 690 N.Y.S.2d 182).

 The court properly precluded defendant from introducing the victim's alleged prior inconsistent statement because by failing to “inform the witness of the circumstances surrounding the making of the statement, and inquire of him whether he in fact made it” (People v. Wise, 46 N.Y.2d 321, 326, 413 N.Y.S.2d 334, 385 N.E.2d 1262), defendant failed to lay a proper foundation.

As the People correctly concede, defendant's sentence of 3 to 9 years for assault in the second degree, a class D felony, was unlawful and we modify accordingly.

MEMORANDUM DECISION.