People v Hicks
2004 NY Slip Op 08359 [12 AD3d 1044]
November 19, 2004
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 19, 2005


The People of the State of New York, Respondent, v Veline Hicks, Appellant.

[*1]

Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered September 17, 2001. The judgment convicted defendant, upon a jury verdict, of reckless endangerment in the first degree and criminal possession of a weapon in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him following a jury trial of reckless endangerment in the first degree (Penal Law § 120.25) and criminal possession of a weapon in the fourth degree (§ 265.01 [4]), defendant contends that he was denied effective assistance of counsel. We reject that contention (see generally People v Baldi, 54 NY2d 137, 147 [1981]). The failure of defense counsel to request a jury instruction on justification (see Penal Law § 35.15) was a strategic decision of a "reasonably competent attorney" (People v Satterfield, 66 NY2d 796, 799 [1985]), and "counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective" (People v Benevento, 91 NY2d 708, 712 [1998]). Defendant consented to the annotations on the verdict sheet and thereby waived his present contention that the verdict sheet was improperly annotated (see CPL 310.20 [2]; People v Brown, 90 NY2d 872, 874 [1997]; People v Knight, 280 AD2d 937, 940 [2001], lv denied 96 NY2d 864 [2001]). Additionally, defendant failed to preserve for our review his contention that County Court erred in failing to instruct the jury in accordance with CPL 310.20 (2) (see People v Wheeler, 257 AD2d 673 [1999], lv denied 93 NY2d 930 [1999]; see also People v Andrews, 267 AD2d 1071 [1999], lv denied 94 NY2d 916 [2000]; People v Mariko, 267 AD2d 113 [1999], lv denied 94 NY2d 950 [2000]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]).

Contrary to the further contentions of defendant, the evidence is legally sufficient to [*2]support the conviction of reckless endangerment in the first degree and the verdict on that count of the indictment is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). The sentence is not unduly harsh or severe. Present—Green, J.P., Pine, Scudder, Martoche and Hayes, JJ.