Opinion
284 KA 21-00945
03-24-2023
The PEOPLE of the State of New York, Respondent, v. Willie Dan NASH, Jr., Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of assault in the second degree ( Penal Law § 120.05 [2] ). Defendant's contention that the conviction is not supported by legally sufficient evidence is not preserved for our review inasmuch as he failed to renew his motion to dismiss after presenting proof (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ). Nonetheless, "we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence" ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] [internal quotation marks omitted]; see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Here, viewing the evidence in light of the elements of the crime in this nonjury trial (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that it cannot be said that County Court "failed to give the evidence the weight it should be accorded" ( People v. Albert , 129 A.D.3d 1652, 1653, 12 N.Y.S.3d 462 [4th Dept. 2015], lv denied 27 N.Y.3d 990, 38 N.Y.S.3d 101, 59 N.E.3d 1213 [2016] ; see People v. Young , 206 A.D.3d 1631, 1634, 168 N.Y.S.3d 616 [4th Dept. 2022] ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We reject defendant's further contention that he was denied effective assistance of counsel based on defense counsel's failure to request certain information in a bill of particulars. Under the circumstances of this case, even if defense counsel should have requested the information, we cannot conclude that the failure to do so is tantamount to ineffective assistance (see People v. Buntley , 286 A.D.2d 909, 910, 730 N.Y.S.2d 752 [4th Dept. 2001], lv denied 97 N.Y.2d 751, 742 N.Y.S.2d 611, 769 N.E.2d 357 [2002] ). Moreover, viewing the evidence, the law, and the circumstances of this case as a whole and as of the time of the representation, we conclude that defendant was afforded meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, we conclude that the sentence is not unduly harsh or severe.