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

154
KA 09-01375
PRESENT: SMITH, J.P., CARNI, SCONIERS, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LESLIE JOHNSON, DEFENDANT-APPELLANT.


BIANCO LAW OFFICE, SYRACUSE (RANDI JUDA BIANCO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered July 1, 2009. 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 on the law by vacating that part convicting
defendant of assault in the second degree and dismissing that count of
the superseding indictment and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting her upon a jury
verdict of assault in the first degree (Penal Law § 120.10 [1]) and
assault in the second degree (§ 120.05 [2]), defendant contends that
she was denied effective assistance of counsel. Several of the
alleged instances of ineffective assistance specified by defendant,
e.g., that she was not properly advised of the pretrial plea offer and
that her attorney did not conduct a proper investigation, are based on
matters outside the record on appeal and thus must be raised by way of
a motion pursuant to CPL article 440 (see People v Miller, 59 AD3d
1124, 1125, lv denied 12 NY3d 819; People v Keith, 23 AD3d 1133,
1134-1135, lv denied 6 NY3d 815). We reject defendant’s contention
with respect to the remaining instances of alleged ineffective
assistance. Insofar as defendant contends that she was denied
effective assistance of counsel based on the failure of defense
counsel to make certain suppression motions, we note that defendant
failed to demonstrate that any such motions would have been
successful. It is well settled that “[t]here can be no denial of
effective assistance of trial counsel arising from counsel’s failure
to ‘make a motion or argument that has little or no chance of
success’ ” (People v Caban, 5 NY3d 143, 152; see People v Pringle, 71
AD3d 1450, 1451, lv denied 15 NY3d 777). We have reviewed the
remaining instances of alleged ineffective assistance set forth by
                                 -2-                           154
                                                         KA 09-01375

defendant and conclude that she received meaningful representation
(see generally People v Baldi, 54 NY2d 137, 147).

     We agree with defendant, however, that assault in the second
degree (Penal Law § 120.05 [2]) is a lesser included offense of
assault in the first degree (§ 120.10 [1]) “and therefore should have
been considered only in the alternative as an inclusory concurrent
count of assault in the first degree” (People v Flecha, 43 AD3d 1385,
1386, lv denied 9 NY3d 990; see CPL 300.30 [4]). We thus modify the
judgment accordingly. We have considered defendant’s remaining
contentions and conclude that none requires reversal.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
