LUMPKIN, MYRON, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1286
KA 09-01499
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MYRON LUMPKIN, DEFENDANT-APPELLANT.
TYSON BLUE, MACEDON, FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Wayne County Court (Stephen R.
Sirkin, J.), rendered June 9, 2009. The judgment convicted defendant,
upon a jury verdict, of assault in the first degree and gang assault
in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of assault in the first degree (Penal Law § 120.10 [1])
and gang assault in the second degree (§ 120.06), defendant contends
that the evidence is legally insufficient to support the conviction.
Defendant failed to preserve his contention for our review both
because his motion for a trial order of dismissal was not specifically
directed at the alleged deficiencies identified on appeal (see People
v Gray, 86 NY2d 10, 19; People v Adair, 84 AD3d 1752, 1753, lv
denied 17 NY3d 812), and because he failed to renew his motion after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, that contention is without merit (see
generally People v Bleakley, 69 NY2d 490, 495).
Contrary to defendant’s further contention, County Court properly
denied, without conducting a hearing, his motion pursuant to CPL
330.30 (1) to set aside the verdict (see generally People v Carter, 63
NY2d 530, 536; People v Morgan, 77 AD3d 1419, 1420, lv denied 15 NY3d
922). We also reject defendant’s contention that he received
ineffective assistance of counsel (see generally People v Baldi, 54
NY2d 137, 147). Rather, we conclude that the “cumulative effect of
defense counsel’s alleged deficiencies, viewed in totality and as of
the time of the representation, did not deprive defendant of effective
assistance of counsel” (People v Marcial, 41 AD3d 1308, 1309, lv
-2- 1286
KA 09-01499
denied 9 NY3d 878). Finally, the sentence is not unduly harsh or
severe.
Entered: December 30, 2011 Frances E. Cafarell
Clerk of the Court