People v. Barker

Appellate Division of the Supreme Court of New York

People v. Barker

134 A.D.3d 432, 19 N.Y.S.3d 731

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 3, 2015

Docket16264 6093/10

StatusPublished

This text of 134 A.D.3d 432 (People v. Barker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Barker, 134 A.D.3d 432, 19 N.Y.S.3d 731 (N.Y. Ct. App. 2015).

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Opinion

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered April 25, 2012, convicting defendant, after a jury trial, of assault in the first and second degrees and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously modified, on the law, to the extent of vacating the second violent felony offender adjudication as to the weapon possession conviction only and remanding for resentencing on that count, and otherwise affirmed.

Defendant’s legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The record supports the conclusion that the victim’s facial scars were seriously disfiguring under the standard set forth in People v McKinnon *433 (15 NY3d 311, 315-316 [2010]), thereby satisfying the element of serious physical injury. We have considered and rejected defendants ineffective assistance of counsel claim relating to this issue.

As the People concede, defendant may not be sentenced as a second violent felony offender on his weapon conviction (Penal Law § 265.02 [1]), which is not enumerated as a violent felony. Concur — Tom, J.P., Sweeny, Andrias and Gische, JJ.

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Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered April 25, 2012, convicting defendant, after a jury trial, of assault in the first and second degrees and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously modified, on the law, to the extent of vacating the second violent felony offender adjudication as to the weapon possession conviction only and remanding for resentencing on that count, and otherwise affirmed.

Defendant’s legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The record supports the conclusion that the victim’s facial scars were seriously disfiguring under the standard set forth in People v McKinnon *433 (15 NY3d 311, 315-316 [2010]), thereby satisfying the element of serious physical injury. We have considered and rejected defendants ineffective assistance of counsel claim relating to this issue.

As the People concede, defendant may not be sentenced as a second violent felony offender on his weapon conviction (Penal Law § 265.02 [1]), which is not enumerated as a violent felony. Concur — Tom, J.P., Sweeny, Andrias and Gische, JJ.

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Bluebook (online)

134 A.D.3d 432, 19 N.Y.S.3d 731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barker-nyappdiv-2015.

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