People v. Heary

• Decision Date: 15 March 2013
• Citation: 104 A.D.3d 1208,960 N.Y.S.2d 812,2013 N.Y. Slip Op. 01689
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard HEARY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1208
960 N.Y.S.2d 812
2013 N.Y. Slip Op. 01689

The PEOPLE of the State of New York, Respondent,
v.
Richard HEARY, Defendant–Appellant.

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

March 15, 2013.

[960 N.Y.S.2d 813]

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[104 A.D.3d 1208]On appeal from a judgment convicting him following a nonjury trial of manslaughter in the first degree (Penal Law § 125.20[1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3] ), defendant contends that the evidence is legally insufficient to support his conviction of manslaughter[104 A.D.3d 1209]because the People failed to meet their burden of disproving his justification defense beyond a reasonable doubt ( see generally § 25.00[1]; People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 260 N.E.2d 527). That contention is not preserved for our review inasmuch as defendant “did not move for a trial order of dismissal on that ground” ( People v. Smalls, 70 A.D.3d 1328, 1330, 894 N.Y.S.2d 791,lv. denied14 N.Y.3d 844, 901 N.Y.S.2d 151, 927 N.E.2d 572,reconsideration denied15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060;see generally People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Defendant further contends that his conviction of manslaughter is not based on legally sufficient evidence because the People failed to establish that he intended to cause serious physical injury to the victim ( see§ 125.20[1] ). Inasmuch as defendant did not renew his motion to dismiss after he presented evidence, he failed to preserve that contention for our review ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;see also People v. Kolupa, 13 N.Y.3d 786, 787, 887 N.Y.S.2d 536, 916 N.E.2d 430;People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61). Defendant acknowledges that he did not preserve for our review his challenges to the legal sufficiency of the evidence, but he additionally contends that he was denied effective assistance of counsel because defense counsel failed to preserve those challenges for our review. That contention

[960 N.Y.S.2d 814]

lacks merit. It is well settled that “[a] defendant is not denied effective...