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

91
KA 14-01328
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VERNON THOMAS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

VERNON THOMAS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered June 24, 2014. The judgment convicted
defendant, upon a jury verdict, of attempted assault in the first
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 attempted assault in the first degree (Penal
Law §§ 110.00, 120.10 [1]). Defendant failed to preserve for our
review his contention that his conviction is not supported by legally
sufficient evidence, inasmuch as he moved for a trial order of
dismissal on a ground different from that raised on appeal (see People
v Scott, 61 AD3d 1348, 1349, lv denied 12 NY3d 920, reconsideration
denied 13 NY3d 799). In any event, we reject defendant’s present
contention. By throwing gasoline on the victim and threatening to
burn her while he held a lighter in his hand, defendant went “beyond
mere preparation to the point that his conduct was potentially and
immediately dangerous” (People v Denson, 26 NY3d 179, 192; see People
v Davis, 83 AD3d 1492, 1492, lv denied 17 NY3d 815, reconsideration
denied 17 NY3d 903; see also People v Adams, 222 AD2d 1124, 1124, lv
denied 87 NY2d 1016). 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 conclude that the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     We conclude that any error in Supreme Court’s Sandoval ruling is
harmless inasmuch as the evidence of defendant’s guilt is
overwhelming, and there is no significant probability that defendant
                                 -2-                            91
                                                         KA 14-01328

would have been acquitted but for the error (see People v Grant, 7
NY3d 421, 424-425). Contrary to defendant’s further contention, we
conclude that the court properly allowed the People to present
evidence that he engaged in uncharged criminal conduct immediately
before and after the attempted assault. That evidence was properly
admitted “to complete the narrative of the events charged in the
indictment” (People v Leeson, 48 AD3d 1294, 1296, affd 12 NY3d 823)
and, in any event, the court provided the jury with an appropriate
limiting instruction, thereby minimizing any potential prejudice to
defendant (see People v Bassett, 55 AD3d 1434, 1436, lv denied 11 NY3d
922). We reject defendant’s contention that he was denied effective
assistance of counsel based upon his attorney’s failure to cross-
examine the People’s domestic violence trauma expert (see People v
Philbert, 267 AD2d 607, 607-608, lv denied 94 NY2d 905; People v
Almanzar, 188 AD2d 654, 655, lv denied 81 NY2d 881). Contrary to
defendant’s further contention, the court properly denied his motion
to set aside the verdict pursuant to CPL 330.30 (3) without conducting
a hearing. Defendant failed to show that the allegedly new evidence
could not have been discovered earlier in the exercise of reasonable
diligence (see People v Sterina, 108 AD3d 1088, 1091), nor in any
event did he show that it was “of such character as to create a
probability that had such evidence been received at the trial the
verdict would have been more favorable to the defendant” (CPL 330.30
[3]; see People v Simon, 71 AD3d 1574, 1576, lv denied 15 NY3d 757,
reconsideration denied 15 NY3d 856). The sentence is not unduly harsh
or severe.

     We have examined defendant’s contentions in his pro se
supplemental brief and conclude that none requires reversal or
modification of the judgment.




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
