                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   106036
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

STACY CAMLIN,
                    Appellant.
________________________________


Calendar Date:   September 15, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                             __________


     Barry J. Jones, Hudson Falls, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


Lahtinen, J.

      Appeal from a judgment of the County Court of Schenectady
County (Tomlinson, J.), rendered June 7, 2013, upon a verdict
convicting defendant of the crimes of assault in the second
degree, assault in the third degree and criminal possession of a
weapon in the third degree.

      When Henry Darden failed to pay defendant money allegedly
owed on a small drug transaction, the two began fist fighting on
a city street in view of several witnesses. During the fight,
Darden sustained two nonfatal stab wounds. Thereafter, defendant
was charged in a three-count indictment. Following a jury trial,
he was convicted of the crimes of assault in the third degree as
a lesser included offense to a charge of attempted assault in the
first degree, assault in the second degree and criminal
                              -2-                106036

possession of a weapon in the third degree. Defendant was
sentenced as a second felony offender to an aggregate prison term
of 6½ years together with postrelease supervision and now
appeals.

      Defendant contends that the first count of the indictment,
charging attempted assault in the first degree, was
jurisdictionally defective and, thus, County Court erred in
granting the People's motion prior to trial to amend it to add
the phrase "by means of a deadly weapon or a dangerous
instrument." We are unpersuaded. "Where an indictment count
incorporates by reference the statutory provision applicable to
the crime intended to be charged, it has been repeatedly held
that this is sufficient to apprise the defendant of the charge
and, therefore, renders the count jurisdictionally valid" (People
v Burch, 97 AD3d 987, 988 [2012], lv denied 19 NY3d 1101 [2012]
[internal quotation marks, brackets and citations omitted]; see
People v Champion, 20 AD3d 772, 774 [2005]; cf. People v Boula,
106 AD3d 1371, 1372 [2013], lv denied 21 NY3d 1040 [2013] ["such
reference may be negated . . . by the inclusion of conduct that
does not constitute the crime charged"]). The indictment
specifically recited in the first count that defendant was being
charged under Penal Law §§ 110.00 and 120.10 (1). The language
added in the amendment mirrored the cited statutory language of
Penal Law § 120.10 (1). The amendment did not change the theory
of the case or prejudice defendant (see People v Hawkins, 130
AD3d 1298, 1301-1302 [2015], lv denied 26 NY3d 968 [2015]; People
v Hall, 125 AD3d 1095, 1096 [2015]; People v Cruz, 61 AD3d 1111,
1112 [2009]).

      Next, defendant argues that he was denied the effective
assistance of counsel because his counsel failed to make a timely
motion to dismiss the indictment after defendant had testified
before the grand jury in prison clothing. "Effective assistance
of counsel is satisfied '[s]o long as the evidence, the law, and
the circumstances of a particular case, viewed in totality and as
of the time of the representation, reveal that the attorney
provided meaningful representation'" (People v Wiggins, 89 NY2d
872, 873 [1996], quoting People v Baldi, 54 NY2d 137, 147
[1981]). Initially, we note that since the grand jury minutes
are not part of the record, we cannot determine whether the
                              -3-                106036

prosecutor provided a curative instruction regarding defendant's
clothing (see People v Fells, 279 AD2d 706, 708 [2001], lv denied
96 NY2d 758 [2001]; People v Di Fondi, 275 AD2d 1018, 1018
[2000], lv denied 95 NY2d 933 [2000]). In any event, under the
circumstances of this case and after considering the totality of
counsel's representation, this single error did not deprive
defendant of meaningful representation (see People v Porter, 82
AD3d 1412, 1416 [2011], lv denied 16 NY3d 898 [2011]; People v
Littebrant, 55 AD3d 1151, 1153 [2008], lv denied 12 NY3d 818
[2009]).

      Finally, defendant asserts that the verdict was against the
weight of the evidence. In a weight of the evidence review, we
"must, like the trier of fact below, weigh the relative probative
force of conflicting testimony and the relative strength of
conflicting inferences that may be drawn from the testimony"
(People v Romero, 7 NY3d 633, 643 [2006] [internal quotation
marks and citations omitted]), while according deference to the
factfinder's credibility determinations (see People v Bleakley,
69 NY2d 490, 495 [1987]). Here, Darden's testimony, as well as
the testimony from the several witnesses to the fight and the
doctor who treated Darden, provided sufficient proof as to each
of the elements of the crimes. Although defendant testified at
trial and denied having a knife during the fight and also claimed
that Darden had a sharp object in his hand, this testimony
created credibility issues. After viewing the evidence in the
record in a neutral light and according deference to the jury's
credibility determinations, we find that the jury's verdict was
not contrary to the weight of the evidence.

     Peters, P.J., McCarthy and Lynch, JJ., concur.
                        -4-                  106036

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
