People v. Martinez

• Decision Date: 16 November 1987
• Citation: 134 A.D.2d 458,521 N.Y.S.2d 80
• Parties: The PEOPLE, etc., Respondent, v. Tito MARTINEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 80

521 N.Y.S.2d 80

134 A.D.2d 458

The PEOPLE, etc., Respondent, v. Tito MARTINEZ, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 16, 1987.

Philip L. Weinstein, New York City (Richard Joselson, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Carey L. Edelman, of counsel), for respondent.

Before NIEHOFF, J.P., and WEINSTEIN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered November 15, 1985, convicting him of attempted murder in the first degree (four counts), attempted murder in the second degree, robbery in the first degree (two counts), criminal possession of a weapon in the third degree (two counts), and criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence, when viewed in a light most favorable to the People, was legally sufficient to support the defendant's conviction (see, People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932). Moreover, upon the exercise of our factual review power, we are satisfied that the defendant's guilt was established beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15[5] ).

The defendant's contention that attempted murder in the first degree is a nonexistent crime and that his convictions of that offense must be reduced to attempted murder in the second degree is without merit (see, People v. Silva, 69 N.Y.2d 858, 859-860, 514 N.Y.S.2d 710, 507 N.E.2d 303).

We find that the trial court properly denied the defendant's request to instruct the jury that attempted assault in the second degree (Penal Law § 120.05[2] ) is a lesser included offense of attempted murder in the first degree and attempted murder in the second degree. Penal Law § 120.05(2) reads, "A person is guilty of assault in the second degree when * * * (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument". The element of "a deadly weapon or a dangerous instrument" is not an element of attempted murder in the first degree or attempted murder in the second degree and, therefore, it is possible to commit the greater crimes without concomitantly, by the same conduct,...