PEOPLE v. GAMBLE

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

The PEOPLE of the State of New York, Respondent, v. Shannon GAMBLE, Defendant-Appellant.

Decided: November 22, 2005

SAXE, J.P., MARLOW, ELLERIN, GONZALEZ, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (David Crow of counsel), and Cravath, Swaine & Moore LLP, New York (Arunabha Bhoumik of counsel), for appellant. Shannon Gamble, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Mary Jo L. Blanchard of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Edward M. Davidowitz, J.), rendered January 23, 2004, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second felony offender, to a term of 12 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The element of serious physical injury was satisfied by ample evidence leading to the conclusion that the gunshot wound inflicted by defendant was the sole cause, or at least a “sufficiently direct cause” (People v. Kibbe, 35 N.Y.2d 407, 413, 362 N.Y.S.2d 848, 321 N.E.2d 773 [1974] ), of the victim's disabling and permanent knee injury (see Matter of Anthony M., 63 N.Y.2d 270, 280-281, 481 N.Y.S.2d 675, 471 N.E.2d 447 [1984] ).

Defendant's procedural challenge to his sentence is unpreserved (see People v. Samms, 95 N.Y.2d 52, 57-58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ).   Although we decline to review it, we note as well it is unreviewable (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ).   Were we nevertheless to review it, we would find it meritless (see People v. Rodriguez, 197 A.D.2d 355, 602 N.Y.S.2d 348 [1993], lv. denied 82 N.Y.2d 902, 610 N.Y.S.2d 169, 632 N.E.2d 479 [1993], see also 22 NYCRR 100.3[B][6][c] ).

 Defendant's ineffective assistance of counsel is not reviewable on direct appeal because it primarily involves matters outside the record.   To the extent the existing record permits review, it establishes 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];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.