| People v Spencer |
| 2022 NY Slip Op 01943 [203 AD3d 1725] |
| March 18, 2022 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Anthony Spencer, Jr., Also Known as Anthony J. Spencer, Jr., Also Known as Anthony J. Spencer, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (John J. Morrissey of counsel), for defendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Robert J. Shoemaker of counsel), for respondent.
Appeal from a judgment of the Genesee County Court (Charles N. Zambito, J.), rendered April 6, 2018. The judgment convicted defendant, upon a jury verdict, of gang assault in the first degree and assault in the first 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 gang assault in the first degree (Penal Law § 120.07) and assault in the first degree (§ 120.10 [1]). We affirm.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's further contention, County Court properly denied his request for a justification instruction (see People v McGhee, 4 AD3d 485, 486 [2d Dept 2004], lv denied 2 NY3d 803 [2004]; see generally People v Hall, 195 AD3d 1574, 1575 [4th Dept 2021], lv denied 37 NY3d 1096 [2021]). We reject defendant's four claims of ineffective assistance of counsel (see People v Harris, 195 AD3d 1535, 1537 [4th Dept 2021], lv denied 37 NY3d 1027 [2021]; People v Townsend, 171 AD3d 1479, 1481 [4th Dept 2019], lv denied 33 NY3d 1109 [2019]; People v Dark, 122 AD3d 1321, 1322-1323 [4th Dept 2014], lv denied 26 NY3d 1039 [2015], denied reconsideration 27 NY3d 1068 [2016]; People v Betsch, 4 AD3d 818, 819 [4th Dept 2004], lv denied 2 NY3d 796 [2004], denied upon reconsideration 3 NY3d 657 [2004]). The sentence is not unduly harsh or severe. Defendant's remaining contention is unpreserved for appellate review, 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]). Present—Whalen, P.J., Smith, NeMoyer and Curran, JJ.