         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
150
KA 09-00168
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CONRAD MARSHALL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Dennis M.
Kehoe, A.J.), rendered September 11, 2008. The judgment convicted
defendant, upon a jury verdict, of attempted aggravated assault upon a
police officer or a peace officer and attempted 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 attempted aggravated assault upon a police
officer or a peace officer (Penal Law §§ 110.00, 120.11) and attempted
assault in the second degree (§§ 110.00, 120.05 [2]). Defendant
failed to preserve for our review his contention that the conviction
of attempted aggravated assault is not supported by legally sufficient
evidence (see People v Gray, 86 NY2d 10, 19). In any event, that
contention lacks merit (see generally People v Bleakley, 69 NY2d 490,
495). Contrary to defendant’s further contention, we conclude that he
was not deprived of his right to effective assistance of counsel.
Inasmuch as we have concluded that the evidence is legally sufficient
to support the conviction of attempted aggravated assault, “there is
no merit to [the] contention that [defendant] was denied effective
assistance of counsel based on defense counsel’s failure to make a
specific motion for a trial order of dismissal with respect to that
count” (People v Ali, 89 AD3d 1417, 1419, lv denied 18 NY3d 922).

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
further conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). Defendant failed
to preserve for our review his contention that County Court erred in
its instruction to the jury with respect to the count of attempted
                                 -2-                           150
                                                         KA 09-00168

aggravated assault (see CPL 470.05 [2]), and we decline to exercise
our power to address it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     Defendant also failed to preserve for our review his contention
that the court improperly sentenced him as a persistent felony
offender because it based the sentence on charges of which defendant
was acquitted (see CPL 470.05 [2]), and in any event that contention
lacks merit. At sentencing, the court noted that defendant had five
prior felony convictions in this state, i.e., two convictions of grand
larceny in the fourth degree, two convictions of criminal possession
of stolen property in the third degree, and a conviction of grand
larceny in the third degree. The court subsequently noted that
defendant’s conduct in this “criminal matter has escalated to the
point that he not only presented a threat to the possession of
property of innocent civilians, but [also] presented a significant and
real threat to the lives of Police Officers who were charged with
enforcing the law of our society.” We conclude that the court’s
statement concerning defendant’s escalated criminal conduct was proper
in light of the court’s position that probation and state
incarceration had failed to deter defendant from the further criminal
conduct at issue on this appeal, and does not reflect that the court
based its sentence on charges of which defendant was acquitted (see
People v Storelli, 216 AD2d 891, 891, lv denied 86 NY2d 803).




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