People v. Morusma

Appellate Division of the Supreme Court of New York

People v. Morusma

45 A.D.3d 253, 844 N.Y.S.2d 266

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

DecidedNovember 1, 2007

StatusPublished

Cited by1 cases

This text of 45 A.D.3d 253 (People v. Morusma) 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. Morusma, 45 A.D.3d 253, 844 N.Y.S.2d 266 (N.Y. Ct. App. 2007).

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Opinion

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered August 15, 2002, convicting defendant, after a jury trial, of attempted assault in the first degree, assault in the second degree, criminal possession of a weapon in the second and third degrees and unlawful wearing of a body vest, and sentencing him to an aggregate term of 10 years, unanimously affirmed.

Defendant’s legal sufficiency argument is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the verdict was supported by legally sufficient evidence. We also find that it was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). Most of the asserted inconsisten[254]*254cies, such as whether or not defendant wore a hooded sweatshirt, were immaterial to the verdict as there was no issue of identity.

The court had no obligation to submit to the jury, sua sponte, the lesser included offense of attempted assault in the second degree (CPL 300.50 [2]). Defendant’s ineffective assistance of counsel claim is unreviewable on direct appeal as it involves matters outside the record concerning the reasons for counsel’s tactical decision not to request this lesser included charge (see People v Rivera, 71 NY2d 705, 709 [1988]). On the existing record, to the extent it permits review, there appear to be reasonable explanations for this decision, and, in any event, there was no reasonable view of the evidence that defendant only intended to cause physical injury but not serious physical injury when he shot the victim in the chest at close range. We have considered and rejected defendant’s remaining pro se claims.

We perceive no basis for reducing the sentence. Concur— Lippman, P.J., Mazzarelli, Friedman, Marlow and Buckley, JJ.

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Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered August 15, 2002, convicting defendant, after a jury trial, of attempted assault in the first degree, assault in the second degree, criminal possession of a weapon in the second and third degrees and unlawful wearing of a body vest, and sentencing him to an aggregate term of 10 years, unanimously affirmed.

Defendant’s legal sufficiency argument is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the verdict was supported by legally sufficient evidence. We also find that it was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]). Most of the asserted inconsisten[254]*254cies, such as whether or not defendant wore a hooded sweatshirt, were immaterial to the verdict as there was no issue of identity.

The court had no obligation to submit to the jury, sua sponte, the lesser included offense of attempted assault in the second degree (CPL 300.50 [2]). Defendant’s ineffective assistance of counsel claim is unreviewable on direct appeal as it involves matters outside the record concerning the reasons for counsel’s tactical decision not to request this lesser included charge (see People v Rivera, 71 NY2d 705, 709 [1988]). On the existing record, to the extent it permits review, there appear to be reasonable explanations for this decision, and, in any event, there was no reasonable view of the evidence that defendant only intended to cause physical injury but not serious physical injury when he shot the victim in the chest at close range. We have considered and rejected defendant’s remaining pro se claims.

We perceive no basis for reducing the sentence. Concur— Lippman, P.J., Mazzarelli, Friedman, Marlow and Buckley, JJ.

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Bluebook (online)

45 A.D.3d 253, 844 N.Y.S.2d 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-morusma-nyappdiv-2007.

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