                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 5, 2015                      105120
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

ROBERT J. McCANN,
                    Appellant.
________________________________


Calendar Date:   January 15, 2015

Before:   Lahtinen, J.P., Garry, Devine and Clark, JJ.

                              __________


     Jack H. Weiner, Chatham, for appellant.

      Glenn MacNeill, Acting District Attorney, Malone, for
respondent.

                              __________


Clark, J.

      Appeals (1) from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered May 14, 2012, upon a verdict
convicting defendant of the crimes of attempted murder in the
second degree, kidnapping in the second degree, criminal use of a
firearm in the first degree, assault in the first degree,
attempted assault in the first degree and stalking in the first
degree, and (2) from a judgment of said court, rendered October
4, 2012, which resentenced defendant on his conviction of
stalking in the first degree.

      Following a jury trial, defendant was convicted of
attempted murder in the second degree, kidnapping in the second
degree, criminal use of a firearm in the first degree, assault in
the first degree, attempted assault in the first degree and
                              -2-                105120

stalking in the first degree. The charges stemmed from a
campaign of harassment against his ex-girlfriend that culminated
in him kidnapping and savagely assaulting her. County Court
thereafter sentenced defendant, as a second violent felony
offender, to an aggregate prison term of 35 years to be followed
by five years of postrelease supervision. Defendant appeals from
the initial conviction, as well as a resentencing upon the
stalking conviction that did not affect his aggregate sentence.

      Defendant contends that the verdict was not supported by
legally sufficient evidence, but his general motion to dismiss at
the close of the People's proof left that argument unpreserved
for our review (see People v Valverde, 122 AD3d 1074, 1075
[2014]; People v Nichol, 121 AD3d 1174, 1176 [2014]).
"Nevertheless, his concomitant claim that the convictions were
against the weight of the evidence requires this Court to assess
the sufficiency of the evidence as to each element of the crimes"
(People v Nichol, 121 AD3d at 1176 [citations omitted]; see
People v Danielson, 9 NY3d 342, 349 [2007]). To that end, the
victim testified that defendant was verbally and physically
abusive while they were dating. In August 2010, the victim told
defendant that she did not want to be with him any longer and,
shortly thereafter, defendant approached her in a rage, shoved
her off of an exercise machine and began screaming at her in
public. Defendant then engaged in a campaign of harassment
against the victim that lasted several months and included his
repeatedly accosting her in public, telephoning and texting her,
notwithstanding her telling him in no uncertain terms that she
wanted to be left alone. The harassment took a particularly
ominous turn in September 2010 when defendant, whom the victim
visited in the hopes of reconciling, choked her and threatened to
kill her. The victim testified that this course of conduct by
defendant left her with a fear of injury, and that fear can only
be viewed as a reasonable one (see Penal Law §§ 120.50 [3];
120.60).

      Defendant then contacted the victim on October 5, 2010 and
suggested that they meet so that he could "say good bye to [her]
the right way." The victim agreed and met with defendant at a
secluded location that defendant had selected, purportedly
because he had told people that they were no longer dating and
                              -3-                105120

did not want others to see them together. When she arrived,
defendant pulled out what appeared to be a gun and informed her
that she was not going anywhere (see Penal Law §§ 135.00 [2];
135.20, 265.09 [1] [b]; People v Smith, 41 AD3d 1093, 1094
[2007], lv denied 9 NY3d 1039 [2008]). Defendant proceeded to
pull the victim towards him and put her in a choke hold with his
arms for several minutes before releasing her. He then deprived
the victim of her car keys and her cell phone, and forced her to
accompany him on an overnight trip. During that time, defendant
continued to physically abuse the victim and threatened to kill
her on numerous occasions. Defendant released her the next day,
but not before forcing her to promise to marry him and to call
various men to say that she was in love with defendant. After
viewing the foregoing evidence in a neutral light and according
due deference to the jury's credibility determinations
(see People v Kancharla, 23 NY3d 294, 303 [2014]), we readily
conclude that the convictions for kidnapping in the second
degree, criminal use of a firearm in the first degree and
stalking in the first degree are not against the weight of the
evidence.

      Defendant additionally argues that the verdict with regard
to the assault in the first degree conviction was against the
weight of the evidence because the victim did not sustain a
serious physical injury – i.e., one "which creates a substantial
risk of death, or which causes death or serious and protracted
disfigurement . . . or protracted loss or impairment of the
function of any bodily organ" – when he placed her in a choke
hold on October 5, 2010 (Penal Law § 10.00 [10]). In that
regard, the victim testified that defendant choked her for two to
three minutes and that she blacked out while he was doing it.
The choking left her unable to lift her head or swallow, caused
hematomas in her eyes and impaired her vision for several days.
A pathologist explained that the victim lost consciousness
because the blood supply to her brain had been cut off from the
choking and that, had defendant not released her, she would have
died a minute or two later. The pathologist further testified
that his review of the victim's medical records and photographs
led him to believe that she had sustained injuries more severe
than those he had observed in individuals who had actually died
as a result of strangulation. Moreover, while the victim's
                              -4-                105120

injuries had largely healed by the time of trial in February
2012, she continued to suffer from chronic neck pain and an
altered voice (compare People v Daniels, 97 AD3d 845, 847 [2012],
lv denied 20 NY3d 931 [2012]). Inasmuch as "the jury could have
rationally found that defendant's strangulation of [the victim]
was an impairment of her physical condition which created a
substantial risk of death" given these facts, we cannot say that
the conviction of assault in the first degree was against the
weight of the evidence (People v Miller, 290 AD2d 814, 815
[2002], lv denied 98 NY2d 678 [2002]; see People v Abreu, 283
AD2d 194, 194-195 [2001], lv denied 96 NY2d 898 [2001]; People v
Perron, 172 AD2d 879, 880 [1991], lv denied 77 NY2d 999 [1991]).
This proof, when coupled with defendant's repeated statements
that he desired to kill the victim, further provided an ample
basis to support the conviction of attempted murder in the second
degree (see People v Perron, 172 AD2d at 879-880).

      We do find that the conviction for attempted assault in the
first degree cannot stand. Defendant was charged under the
theory that, during the course of the kidnapping, he attempted to
cause serious physical injury when he choked the victim a second
time after she made an abortive effort to get help (see Penal Law
§ 120.10 [4]). An attempt to commit a crime requires that a
person, "with intent to commit a crime, . . . engages in conduct
which tends to effect the commission of such crime" (Penal Law
§ 110.00). In contrast, felony assault punishes a felon for the
actual consequences of his or her actions, and "there can be no
attempt to commit a crime which makes the causing of a certain
result criminal even though wholly unintended" (People v
Campbell, 72 NY2d 602, 605 [1988]; see People v Hendrix, 56 AD2d
580, 581 [1977], affd 44 NY2d 658 [1978]; People v Hassin, 48
AD2d 705, 705 [1975]). Accordingly, notwithstanding the fact
that defendant did not advance this specific issue in his
appellate brief, the count of the indictment charging him with
attempted felony assault is jurisdictionally defective and must
be dismissed (see People v Burress, 122 AD2d 588, 589 [1986], lv
denied 68 NY2d 810 [1986]; see also People v Bethea, 61 AD3d
1016, 1017 [2009]).

      Defendant next contends that his statement to investigators
should have been suppressed because a martial arts instructor he
                              -5-                105120

requested to be with him during the interrogation – who also
happened to be a detective sergeant with the St. Lawrence County
Sheriff's Department – induced him to confess. County Court
appropriately found that the instructor was not acting as an
agent of the police and, in any event, defendant was administered
Miranda warnings before the interrogation began (see People v
Ray, 65 NY2d 282, 286 [1985]; People v Hales, 272 AD2d 984, 984-
985 [2000], lv denied 95 NY2d 935 [2000]). The instructor
additionally testified that he went to help defendant, only gave
him friendly advice, and made no promises or other statements
that would have induced defendant to falsely confess (see CPL
60.45 [2] [b]; People v De Pasquale, 54 NY2d 693, 694-695
[1981]). Therefore, according proper deference to the
credibility determinations of County Court, we find that it
properly refused to suppress defendant's statement (see People v
De Pasquale, 54 NY2d at 694-695; People v Whitted, 117 AD3d 1179,
1181 [2014], lv denied 23 NY3d 1026 [2014]).

      Contrary to defendant's further argument, he was not
deprived of the effective assistance of counsel due to his
representation by the Franklin County Public Defender, an office
that had previously represented a jailhouse informant testifying
for the People. While that situation constitutes a potential
conflict of interest, defendant will not prevail unless he can
further show that the potential conflict affected the conduct of
his defense in some way (see People v Sanchez, 21 NY3d 216, 222-
223 [2013]; People v Harris, 99 NY2d 202, 211 [2002]; People v
Ortiz, 76 NY2d 652, 656-657 [1990]). Defendant has failed to
make that showing, as the witness waived his attorney-client
privilege for purposes of cross-examination and, indeed, was
vigorously cross-examined (see People v Harris, 99 NY2d at 211;
People v Robles, 115 AD3d 30, 36-37 [2014], lv denied 22 NY3d
1202 [2014]).1 Defendant correctly points out that County Court
did not ensure that "he understood the risks that may be involved
with respect to the potential conflict, [but] the failure to make


    1
        The witness indicated that he would only waive his
attorney-client privilege if he were cross-examined by an
attorney who had no familiarity with his prior dealings with the
Public Defender, and that condition was met.
                              -6-                  105120

such an inquiry does not constitute reversible error because
defendant has not established that the potential conflict of
interest bore a substantial relation to the conduct of the
defense" (People v Hurlbert, 81 AD3d 1430, 1431 [2011], lv
denied 16 NY3d 896 [2011] [internal quotation marks and citations
omitted]; see People v Jenkins, 256 AD2d 735, 736-737 [1998], lv
denied 93 NY2d 854 [1999]).

      Defendant lastly argues that the aggregate prison sentence
imposed – which is 20 years in the absence of the conviction for
attempted assault in the first degree – is harsh and excessive.
Based upon our review of the record, however, we perceive neither
an abuse of discretion nor the existence of any extraordinary
circumstances that would warrant a reduction in the sentence (see
People v Hartman, 86 AD3d 711, 713 [2011], lv denied 18 NY3d 859
[2011]; People v Rodriguez, 306 AD2d 686, 689 [2003], lv
denied 100 NY2d 624 [2003]).

      We have examined defendant's remaining claims and find them
to be unpersuasive.

     Lahtinen, J.P., Garry and Devine, JJ., concur.


      ORDERED that the judgment rendered May 14, 2012 is
modified, on the law, by reversing defendant's conviction of
attempted assault in the first degree under count 6 of the
indictment; said count dismissed and the sentence imposed thereon
vacated; and, as so modified, affirmed.

      ORDERED that the judgment rendered October 4, 2012 is
affirmed.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
