People v. Delacruz, 10414

• Decision Date: 21 November 2019
• Docket Number: 10414,Ind. 513/12
• Citation: 110 N.Y.S.3d 682,177 A.D.3d 541
• Parties: The PEOPLE of the State of New York, Respondent, v. Alejandro DELACRUZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 541
110 N.Y.S.3d 682

The PEOPLE of the State of New York, Respondent,
v.
Alejandro DELACRUZ, Defendant–Appellant.

10414
Ind. 513/12

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

ENTERED: NOVEMBER 21, 2019

110 N.Y.S.3d 683

Janet E. Sabel, The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.

Friedman, J.P., Renwick, Oing, Singh, JJ.

177 A.D.3d 542

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered June 20, 2013, convicting defendant, after a nonjury trial, of attempted gang assault in the second degree and assault in the second degree, and sentencing him to concurrent terms of two years, unanimously modified, on the law, to the extent of vacating the attempted gang assault conviction and dismissing that charge, and otherwise affirmed.

"[A]ttempted gang assault in the second degree is a legal impossibility for trial purposes" ( Matter of Cisely G., 81 A.D.3d 508, 508, 918 N.Y.S.2d 23 [1st Dept. 2011] ; see also People v. Campbell, 72 N.Y.2d 602, 605–606, 535 N.Y.S.2d 580, 532 N.E.2d 86 [1988] ). "One cannot attempt to create an unintended result" ( People v. Prescott, 95 N.Y.2d 655, 722 N.Y.S.2d 778, 745 N.E.2d 1000 [2001] ). The People's arguments for revisiting our determination in Cisely G. are unpersuasive.

Defendant failed to preserve, or affirmatively waived, his argument that the court erred in admitting two pieces of evidence that were allegedly the fruits of what the court, in suppressing other evidence, had determined to be an unlawful arrest, and we decline to review this claim in the interest of justice. As an alternative holding, we find no basis for reversal. Defendant's argument that defense counsel was ineffective because he failed to seek exclusion of this evidence at trial is unreviewable on direct appeal because it involves matters not...