HOLT, JOSEPH, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
281
KA 10-01367
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOSEPH HOLT, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, MITCHELL GORIS STOKES &
SULLIVAN, LLC, CAZENOVIA (STEWART F. HANCOCK, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered May 7, 2010. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree and assault in the third degree.
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 assault in the second degree (Penal Law §
120.05 [3]) and assault in the third degree (§ 120.00 [1]). Defendant
failed to preserve for our review his challenge to the legal
sufficiency of the evidence supporting the conviction of assault in
the second degree inasmuch as he failed to renew his motion for a
trial order of dismissal after presenting evidence (see People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event, we
reject defendant’s contention that the evidence is legally
insufficient to establish the element of intent with respect to that
crime (see generally People v Bleakley, 69 NY2d 490, 495). It is well
established that “[i]ntent may be inferred from conduct as well as the
surrounding circumstances” (People v Steinberg, 79 NY2d 673, 682; see
People v Smith, 79 NY2d 309, 315). Viewing the evidence in light of
the elements of the crime of assault in the second degree as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict with respect to that crime is not against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant further contends that he was denied effective
assistance of counsel based solely on defense counsel’s failure to
renew the motion for a trial order of dismissal with respect to the
count of assault in the second degree. We reject that contention.
-2- 281
KA 10-01367
Here, inasmuch as we have concluded that the evidence is legally
sufficient to support the conviction of that count, it cannot be said
that defense counsel’s failure to renew the motion with respect
thereto constitutes ineffective assistance of counsel (see People v
Washington, 60 AD3d 1454, lv denied 12 NY3d 922; see generally People
v Baldi, 54 NY2d 137, 147). Defendant’s challenge to the legal
sufficiency of the evidence before the grand jury is not properly
before us. “It is well settled that, ‘when a judgment of conviction
has been rendered based upon legally sufficient trial evidence,
appellate review of a claim alleging insufficiency of [g]rand [j]ury
evidence is barred’ ” (People v Bastian, 294 AD2d 882, 883, lv denied
98 NY2d 694, quoting People v Wiggins, 89 NY2d 872, 874; see CPL
210.30 [6]). We have reviewed defendant’s remaining contention and
conclude that it is without merit.
Entered: March 23, 2012 Frances E. Cafarell
Clerk of the Court