People v. McLeod

85 A.D.3d 510, 925 N.Y.S.2d 55

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2011
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered July 21, 2009, convicting defendant, after a jury trial, of assault in the first degree, attempted assault in the first degree, and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 18 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of to reducing the prison term for the assault conviction to 15 years, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 [2007]). There is no basis for disturbing the jury’s credibility determinations. The evidence established that defendant acted intentionally, rather than recklessly.

Since each of the charges submitted to the jury required intent, the court properly exercised its discretion in declining to instruct the jury on the difference between intent and recklessness (see generally People v Samuels, 99 NY2d 20, 25-26 [2002]). The court permitted counsel to argue in summation that defendant’s conduct was reckless in the general sense of that term, and the court correctly observed that an instruction on the legal definition of recklessness would only complicate that argument.

We find the sentence excessive to the extent indicated. Concur — Saxe, J.P., Acosta, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ.