People v. Gregory

• Decision Date: 24 January 2002
• Docket Number: 3,12535
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DAVID GREGORY, Appellant. 12535 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

THE PEOPLE OF THE STATE OF NEW YORK, Respondent v DAVID GREGORY, Appellant

12535

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Calendar Date: December 14, 2001

Decided and Entered: January 24, 2002

Kurt Mausert, Saratoga Springs, for appellant.

Penelope D. Clute, District Attorney, Plattsburgh, for respondent.

MEMORANDUM AND ORDER

Before: Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ.

Mugglin, J.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered August 15, 2000, convicting defendant upon his plea of guilty of the crimes of gang assault in the first degree and assault in the first degree (two counts).

Upon his plea of guilty of the crimes of gang assault in the first degree and two counts of assault in the first degree, defendant was sentenced to concurrent determinate prison terms of 10 years on each count. He contends, on this appeal, that the sentence should be vacated because he was allowed to plead guilty to contradictory crimes, the sentence was harsh and excessive and he did not receive the effective assistance of counsel.

Defendant claims that he pleaded to contradictory crimes because gang assault in the first degree (see, Penal Law § 120.07) and assault in the first degree (see, Penal Law § 120.10 [1]), under the first two counts of the indictment, require specific intent, while the charge of assault in the first degree under the third count of the indictment, which involves depraved indifference to human life (see, Penal Law § 120.10 [3]), depends on reckless conduct and is repugnant to the first two counts. We disagree. Additional facts alleged in the third count that are not present in the first two counts are that defendant and his codefendants poured water on the victim, stripped most of his clothing off, and left him lying unconscious on the railroad tracks in below freezing temperatures. These additional facts adequately establish that the conduct of defendant evinced a depraved indifference to human life which created a grave risk of death from which the victim luckily escaped (see, People v Kibbe, 35 N.Y.2d 407, 414). The record contains an adequate factual basis supporting each of the counts of the indictment and we therefore find no error in the imposition of concurrent sentences on each count.

Next, we are unpersuaded by defendant's argument that the sentence imposed was harsh and excessive. Defendant grounds this argument essentially on two facts, namely, that he was 16 years of age at the time of the commission of these crimes and that he had no prior felony convictions. Notably, despite his age, the preplea investigation reveals pending charges of burglary in the third degree, two convictions for unlawful possession of marihuana and one for petit larceny for which defendant had spent a total of over 100 days in jail. Moreover, the assaults, as noted by County Court, were particularly brutal and senseless and resulted in severe permanent injuries to the victim. We perceive no abuse of discretion or extraordinary circumstances which would dictate interfering with the sentence which was imposed in the sound discretion of the trial court (see, People v Simon, 180 A.D.2d 866, 866, lv denied 80 N.Y.2d 838). The sentence imposed was well within the parameters allowable, it was not disproportionate to defendant's conduct and the court considered all relevant factors (see, People v Hope, 274 A.D.2d 673, lv denied 95 N.Y.2d 890).

Defendant's claim of ineffective assistance of counsel is founded upon the failure of counsel to raise, and County Court to address, defendant's potential for youthful offender status, the defense of intoxication...