THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KEVIN ANDERSON ALSO KNOWN AS AKIM NELSON DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEVIN ANDERSON, ALSO KNOWN AS AKIM NELSON, DEFENDANT-APPELLANT.

KA 09-01468

Decided: December 30, 2010

PRESENT:  MARTOCHE, J.P., SMITH, FAHEY, PERADOTTO, AND GREEN, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JOHN PATRICK FEROLETO OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of murder in the second degree (Penal Law § 125.25[1], [3] ).   Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19;  People v. Townsley, 50 AD3d 1610, lv denied 11 NY3d 742).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Contrary to the contention of defendant, we conclude that he received effective assistance of counsel (see People v. McDaniel, 13 NY3d 751;  People v. Forsythe, 59 AD3d 1121, 1123-1124, lv denied 12 NY3d 816;  see generally People v. Baldi, 54 N.Y.2d 137, 147).

The sentence is not unduly harsh or severe.   We note, however, that the certificate of conviction incorrectly reflects that defendant was convicted of two counts of attempted robbery in the first degree under Penal Law § 160.15(4), and it must therefore be amended to reflect that he was convicted of one count of attempted robbery in the first degree under Penal Law § 160.15(1) and one count of attempted robbery in the first degree under Penal Law § 160.15(4) (see People v. Martinez, 37 AD3d 1099, lv denied 8 NY3d 947;  People v. Benson, 265 A.D.2d 814, 816, lv denied 94 N.Y.2d 860, cert denied 529 U.S. 1076).

Patricia L. Morgan

Clerk of the Court