         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
6
KA 11-00450
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALEXIS MADERA, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered January 10, 2011. The judgment
convicted defendant, upon a jury verdict, of assault in the first
degree and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the conviction of assault in the
first degree under the first count of the indictment to attempted
assault in the first degree (Penal Law §§ 110.00, 120.10 [1]) and
vacating the sentence imposed on that count and as modified the
judgment is affirmed, and the matter is remitted to Supreme Court,
Monroe County, for sentencing on that conviction.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of assault in the first degree (Penal Law § 120.10 [1]) and
assault in the second degree (§ 120.05 [2]), defendant contends that
the evidence of serious physical injury is legally insufficient to
support the conviction of assault in the first degree. Although
defendant failed to preserve that contention for our review (see
People v Gray, 86 NY2d 10, 19), we nevertheless exercise our power to
address that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). A person is guilty of assault in
the first degree when, inter alia, he or she, with intent to cause
serious physical injury to another person, causes such injury to that
person or to another person by means of a deadly weapon or a dangerous
instrument (Penal Law § 120.10 [1]). We agree with defendant that the
evidence is legally insufficient to establish the element of serious
physical injury (see generally People v Bleakley, 69 NY2d 490, 495).
Serious physical injury, as defined in the Penal Law, “means physical
injury which creates a substantial risk of death, or which causes
death or serious and protracted disfigurement, protracted impairment
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                                                         KA 11-00450

of health or protracted loss or impairment of the function of any
bodily organ” (§ 10.00 [10]). The People correctly concede that there
was no evidence that the victim sustained serious and protracted
disfigurement, protracted impairment of health or protracted loss or
impairment of the function of any bodily organ. They contend,
however, that the victim’s injuries created a substantial risk of
death (see id.). We reject that contention.

     The evidence at trial concerning the victim’s injury consisted of
the victim’s testimony and medical records. That evidence established
that the bullet entered and exited the victim’s body around his right
nipple; it was not near any vital organs; and it grazed the victim’s
right arm either as it entered or exited his body. Although a tiny
fragment of the bullet remained in the victim’s chest, the People
presented no medical testimony to explain what, if any, risk that
fragment posed to the victim. No sutures were needed and the victim’s
self-reported pain level was low. The victim was kept in the hospital
overnight for pain management and observation, but he remained in the
hospital for another day due to his expressed intent to retaliate
against defendant.

     Viewing that evidence in the light most favorable to the People,
we conclude that no “ ‘rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt’ ” (People v
Contes, 60 NY2d 620, 621). The People presented no evidence
establishing that the victim faced a substantial risk of death (see
e.g. People v Nimmons, 95 AD3d 1360, 1360-1361, lv denied 19 NY3d
1028; People v Tucker, 91 AD3d 1030, 1031-1032, lv denied 19 NY3d
1002; People v Ham, 67 AD3d 1038, 1039-1040; People v Gray, 30 AD3d
771, 773, lv denied 7 NY3d 848). Nevertheless, we conclude that the
evidence is legally sufficient to establish that defendant committed
the lesser included offense of attempted assault in the first degree,
“namely that defendant intended to cause serious physical injury to
the victim by means of a deadly weapon and engaged in conduct that
tended to effect the commission of the crime of assault in the first
degree” (Gray, 30 AD3d at 773; see Penal Law §§ 110.00, 120.10 [1];
People v Pross, 302 AD2d 895, 897, lv denied 99 NY2d 657). We
therefore modify the judgment by reducing the conviction of assault in
the first degree to that lesser included offense, and we remit the
matter to Supreme Court for sentencing on that conviction (see CPL
470.15 [2] [a]; 470.20 [4]; Pross, 302 AD2d at 897).

     Although defendant further contends that the evidence before the
grand jury was legally insufficient to support the indictment on the
count of assault in the first degree, he failed to preserve that
contention for our review inasmuch as his “omnibus motion . . . failed
to set forth the specific grounds for dismissal now set forth on
appeal, i.e., that the evidence was insufficient to establish . . .
the element of [serious physical injury]” (People v Agee, 57 AD3d
1486, 1487, lv denied 12 NY3d 813; see People v Becoats, 71 AD3d 1578,
1579, affd 17 NY3d 643, cert denied ___ US ___, 132 S Ct 1970; People
v Cobb, 72 AD3d 1565, 1565-1566, lv denied 15 NY3d 803). We decline
to exercise our power to address that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). Based
                                 -3-                             6
                                                         KA 11-00450

on our determination that the trial evidence is legally insufficient
to support the charge of assault in the first degree, we do not
address defendant’s remaining contentions concerning the conviction of
that count of the indictment.

     Although defendant further contends that he was denied a fair
trial based on prosecutorial misconduct during summation, that
contention is not preserved for our review because defendant failed to
object to the allegedly improper comments during summation (see People
v Balls, 69 NY2d 641, 642; People v Sulli, 81 AD3d 1309, 1311, lv
denied 17 NY3d 802). We decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     Defendant contends that the court erred at trial in allowing the
People to present evidence concerning a confrontation between
defendant and one victim that occurred the day before the instant
shooting. In addition, defendant contends that the court erred in
failing, sua sponte, to give the jury an appropriate limiting
instruction. Defendant, however, failed to preserve either contention
for our review (see People v Hunt, 74 AD3d 1741, 1742, lv denied 15
NY3d 806; People v Francis, 63 AD3d 1644, 1645, lv denied 13 NY3d 835;
see also People v Allen, 93 AD3d 1144, 1146, lv denied 19 NY3d 956;
People v Moore [appeal No. 2], 78 AD3d 1658, 1659). In any event,
defendant’s contentions lack merit. The challenged evidence “was
probative of [defendant’s] motive and intent to assault his victim; it
provided necessary background information on the nature of the
relationship and placed the charged conduct in context” (People v
Dorm, 12 NY3d 16, 19; see generally People v Alvino, 71 NY2d 233, 241-
242). “Although it would have been better practice to caution the
jury on the limited purpose for which the evidence was admitted, both
at the time it was introduced and again during the charge, the
defendant did not request a limiting instruction when the testimony
was admitted, and the court adequately instructed the jury as to its
limited purpose in the charge” (People v Kae Kim, 218 AD2d 815, 815-
816, lv denied 87 NY2d 847).

     We reject the additional contention of defendant that he was
denied effective assistance of counsel based on defense counsel’s
failure to preserve defendant’s contentions for our review. Viewing
the evidence, the law, and the circumstances of this case in totality
and as of the time of the representation, we conclude that defense
counsel provided meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147). Finally, the sentence imposed on the
conviction of assault in the second degree with respect to a second
victim is not unduly harsh or severe.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
