THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ANTOINE DAVIS DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTOINE DAVIS, DEFENDANT–APPELLANT.

KA 10–00464

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY 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 following a nonjury trial of, inter alia, attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1] ).   Contrary to defendant's contention, his conviction of attempted assault is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Defendant's conduct of dousing his intended victim in lighter fluid and threatening to burn her “went far beyond mere discussion of a crime ․ and beyond [threatening] to commit a crime ․, and even beyond arming [himself] in preparation for a crime” (People v. Mahboubian, 74 N.Y.2d 174, 191;  see generally People v. Adams, 222 A.D.2d 1124, lv denied 87 N.Y.2d 1016;  People v. Johnson, 186 A.D.2d 363, lv denied 81 N.Y.2d 763).   Viewing the evidence in light of the elements of the crime of attempted assault in the first degree in this nonjury trial (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's further contention that the verdict with respect to that count is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).   We also reject defendant's contention that reversal is warranted based upon the court's failure to make a sufficient inquiry whether defendant was aware of the potential risks associated with defense counsel's prior representation of a prosecution witness and whether defendant wished to proceed with defense counsel despite any potential conflict (see generally People v. Gomberg, 38 N.Y.2d 307, 313–314).  “[D]efendant failed to meet his burden of establishing that ‘the conduct of his defense was in fact affected by the operation of the conflict of interest’ “ (People v. Smart, 96 N.Y.2d 793, 795, quoting People v. Alicea, 61 N.Y.2d 23, 31).

Patricia L. Morgan

Clerk of the Court