         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1262
KA 11-00210
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID MORRIS, DEFENDANT-APPELLANT.


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

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SETH T. MOLISANI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered August 31, 2010. The judgment convicted
defendant, upon a nonjury verdict, of attempted assault in the third
degree 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,
after a nonjury trial, of attempted assault in the third degree (Penal
Law §§ 110.00, 120.00 [1]) and attempted assault in the second degree
(§§ 110.00, 120.05 [1]), arising from two separate incidents in which
he choked his girlfriend to the point that she was rendered
unconscious. Contrary to defendant’s contention, the conviction is
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). We note in particular that the victim’s
breathing did not spontaneously resume after the second incident,
i.e., with respect to the charge of attempted assault in the second
degree, until after she was resuscitated. Thus, viewing the evidence
with respect to that charge in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), we conclude that the evidence
that defendant choked the victim to the point of unconsciousness and
continued choking her until she started to turn blue, while telling
her that he was going to kill her, and that she did not begin
breathing until after she was resuscitated, is legally sufficient to
establish that he intended to cause serious physical injury to the
victim. Viewing the evidence in light of the elements of the crimes
in this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
further conclude that the verdict is not against the weight of the
evidence (see Bleakley, 69 NY2d at 495).

     Contrary to defendant’s further contention, County Court properly
                                 -2-                          1262
                                                         KA 11-00210

refused to suppress the statement he made to the police while
handcuffed and seated in a patrol vehicle, when he was in custody and
before he received Miranda warnings. The evidence at the Huntley
hearing “supports the court’s determination that defendant
spontaneously made that statement [inasmuch as] it was not the product
of express questioning or its functional equivalent” (People v
Cheatom, 57 AD3d 1447, 1447, lv denied 12 NY3d 782 [internal quotation
marks omitted]; see People v Moss, 89 AD3d 1526, 1527, lv denied 18
NY3d 885).

     We note that there is a discrepancy between the sentencing
minutes, in which the court directed that the indeterminate term of
imprisonment imposed on the felony run consecutively to the definite
sentence imposed on the misdemeanor, and the certificate of
conviction, which directs that the sentences run concurrently. The
record does not reflect whether defendant was resentenced. We need
not modify the judgment with respect to the sentence or remit the
matter for resentencing, however, because, as “the People correctly
concede, . . . the court erred in directing that the definite
sentence[] imposed on the misdemeanor count[] shall run consecutively
to the indeterminate sentence imposed on the felony count (see Penal
Law § 70.35)” (People v Shorter, 6 AD3d 1204, 1205-1206, lv denied 3
NY3d 648). We therefore affirm the judgment, as reflected in the
certificate of conviction, which directs that the definite sentence
shall run concurrently with the indeterminate sentence (see People v
Leabo, 84 NY2d 952, 953; People v Newman, 87 AD3d 1348, 1350, lv
denied 18 NY3d 926). Finally, the sentence is not unduly harsh or
severe.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
