The People of the State of New York, Respondent, v. Donald McLeod, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Donald McLeod, Defendant–Appellant.

5318

Decided: June 14, 2011

Saxe, J.P., Acosta, DeGrasse, Abdus–Salaam, Manzanet–Daniels, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Angie Louie of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

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Judgment, Supreme Court, New York County (Renee A. White, J.), rendered July 21, 2009, convicting defendant, after a jury trial, of assault in the first degree, attempted assault in the first degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 18 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of to reducing the prison term for the assault conviction to 15 years, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ).   There is no basis for disturbing the jury's credibility determinations.   The evidence established that defendant acted intentionally, rather than recklessly.

Since each of the charges submitted to the jury required intent, the court properly exercised its discretion in declining to instruct the jury on the difference between intent and recklessness (see generally People v. Samuels, 99 N.Y.2d 20, 25–26 [2002] ).   The court permitted counsel to argue in summation that defendant's conduct was reckless in the general sense of that term, and the court correctly observed that an instruction on the legal definition of recklessness would only complicate that argument.

We find the sentence excessive to the extent indicated.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK