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

348
KA 10-00464
PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTOINE DAVIS, 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 (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered January 7, 2010. The judgment convicted
defendant, upon a nonjury verdict, of attempted assault in the first
degree, endangering the welfare of a child, menacing in the second
degree and aggravated harassment 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
following a nonjury trial of, inter alia, attempted assault in the
first degree (Penal Law §§ 110.00, 120.10 [1]). Contrary to
defendant’s contention, his conviction of attempted assault is
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Defendant’s conduct of dousing his
intended victim in lighter fluid and threatening to burn her “went far
beyond mere discussion of a crime . . . and beyond [threatening] to
commit a crime . . ., and even beyond arming [himself] in preparation
for a crime” (People v Mahboubian, 74 NY2d 174, 191; see generally
People v Adams, 222 AD2d 1124, lv denied 87 NY2d 1016; People v
Johnson, 186 AD2d 363, lv denied 81 NY2d 763). Viewing the evidence
in light of the elements of the crime of attempted assault in the
first degree in this nonjury trial (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contention that the verdict
with respect to that count is against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). We also reject defendant’s
contention that reversal is warranted based upon the court’s failure
to make a sufficient inquiry whether defendant was aware of the
potential risks associated with defense counsel’s prior representation
of a prosecution witness and whether defendant wished to proceed with
defense counsel despite any potential conflict (see generally People v
Gomberg, 38 NY2d 307, 313-314). “[D]efendant failed to meet his
                                 -2-                           348
                                                         KA 10-00464

burden of establishing that ‘the conduct of his defense was in fact
affected by the operation of the conflict of interest’ ” (People v
Smart, 96 NY2d 793, 795, quoting People v Alicea, 61 NY2d 23, 31).




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
