People v. Gamble

23 A.D.3d 294, 808 N.Y.S.2d 20

Opinion

Judgment, Supreme Court, Bronx County (Edward M. Davidowitz, J.), rendered January 23, 2004, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second felony offender, to a term of 12 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The element of serious physical injury was satisfied by ample evidence leading to the conclusion that the gunshot wound inflicted by defendant was the sole cause, or at least a “sufficiently direct cause” (People v Kibbe, 35 NY2d 407, 413 [1974]), of the victim’s disabling and permanent knee injury (see Matter of Anthony M., 63 NY2d 270, 280-281 [1984]).

Defendant’s procedural challenge to his sentence is unpreserved (see People v Samms, 95 NY2d 52, 57-58 [2000]). Although we decline to review it, we note as well it is unreviewable (see People v Kinchen, 60 NY2d 772 [1983]). Were we nevertheless to review it, we would find it meritless (see People v Rodriguez, 197 AD2d 355 [1993], lv denied 82 NY2d 902 [1993], see also 22 NYCRR 100.3 [B] [6] [c]).

Defendant’s ineffective assistance of counsel is not reviewable on direct appeal because it primarily involves matters outside the record. To the extent the existing record permits review, it establishes that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental brief. Concur—Saxe, J.P., Marlow, Ellerin, Gonzalez and McGuire, JJ.