        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

380
KA 15-00971
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN ARCHIBALD, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (NICHOLAS
T. TEXIDO OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered October 29, 2014. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of assault in the second degree (Penal Law
§ 120.05 [2]). Supreme Court sentenced defendant as a persistent
felony offender to an indeterminate term of incarceration of 15 years
to life. Defendant contends that the evidence is legally insufficient
to establish that he possessed a dangerous instrument, i.e., a knife,
and that he used it intentionally to cause physical injury to the
victim. We reject that contention. The victim testified that he saw
defendant with a knife in his hand, and observed and felt defendant
use the knife to cut him across the face. We note that the victim’s
testimony is buttressed by videotape and photographic evidence
depicting defendant holding an elongated shiny object and also
depicting blood at various locations inside the store where the
assault had occurred. That evidence is legally sufficient to
establish defendant’s identity as the assailant and his use of a
dangerous instrument to intentionally inflict physical injury upon the
victim (see People v Butler, 140 AD3d 1610, 1610-1611, lv denied 28
NY3d 969; see also People v Bleakley, 69 NY2d 490, 495). Viewing the
evidence in light of the elements of the crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
further contention that the verdict is against the weight of the
evidence (see Butler, 140 AD3d at 1611; see generally Bleakley, 69
NY2d at 495).
                                 -2-                           380
                                                         KA 15-00971

     We reject defendant’s further contention that the court erred in
refusing to charge third-degree assault as a lesser included offense
of second-degree assault. Although “ ‘it is theoretically impossible
to commit assault in the second degree under [Penal Law § 120.05 (2)]
without at the same time committing assault in the third degree under
[Penal Law § 120.00 (1)]’ ” (People v Smith, 121 AD3d 1568, 1569, lv
denied 26 NY3d 1150; see People v Fasano, 107 AD2d 1052, 1052; see
generally CPL 1.20 [37]; People v Glover, 57 NY2d 61, 63-64), here
there is no reasonable view of the evidence that would support a
finding that defendant committed the lesser offense but not the
greater (see Smith, 121 AD3d at 1569; People v Samuels, 113 AD3d 1117,
1117, lv denied 24 NY3d 964).

     Defendant’s contention that the sentence imposed by the court
violated his right to be free from cruel and unusual punishment
pursuant to the Eighth Amendment of the United States Constitution and
article I, § 5 of the New York Constitution is not preserved for our
review inasmuch as defendant did not raise it before the sentencing
court (see People v Ludwig, 104 AD3d 1162, 1164, affd 24 NY3d 221;
People v Kirk, 96 AD3d 1354, 1359, lv denied 20 NY3d 1012). In any
event, it is without merit (see Kirk, 96 AD3d at 1359; People v
Verbitsky, 90 AD3d 1516, 1516, lv denied 19 NY3d 868). We reject
defendant’s further contention that the sentence is unduly harsh and
severe.

     Finally, we note that the record does not support defendant’s
contention that he was deprived of effective assistance of counsel and
due process because defense counsel and the court allegedly misled him
about the advisability of going to trial. We note that the record
does not demonstrate that defendant was offered the opportunity to
plead guilty in exchange for a sentence less than that ultimately
imposed. Moreover, the record does not conclusively reveal what
defendant and his counsel knew about the strengths and weaknesses of
the People’s case prior to trial, particularly with reference to the
contents of the videotape, and what impact that knowledge may have had
on defendant’s decision to go to trial. Because defendant’s
contentions involve matters outside the record on appeal, they must be
raised by way of a motion pursuant to CPL article 440 (see People v
Smith, 145 AD3d 1628, 1630; People v Riley, 117 AD3d 1495, 1496, lv
denied 24 NY3d 1088; see also People v Thomas, 144 AD3d 1596, 1597).
We conclude on the record before us that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
