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The People of the State of New York v. Steven Bermudez

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


May 21, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
STEVEN BERMUDEZ,
APPELLANT,
AND MARCUS WILLIAMS, DEFENDANT.

Appeal from a judgment of the District Court of Nassau County, First District (Francis Ricigliano, J.), rendered September 18, 2009.

People v Bermudez (Steven)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 21, 2012

PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ

The judgment, insofar as appealed from, convicted defendant Steven Bermudez, upon a jury verdict, of two counts of assault in the third degree.

ORDERED that the judgment of conviction, insofar as appealed from, is affirmed.

Insofar as relevant to this appeal, Steven Bermudez (defendant) was convicted, following a jury trial, of two counts of assault in the third degree (Penal Law § 120.00 [1]). Defendant's claim that the evidence of physical injury was legally insufficient to support the conviction of assault in the third degree with respect to victim Kevin Richards is not preserved for appellate review as defendant never asserted this claim at trial (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Williams, 23 AD3d 589 [2005]; People v Branch, 306 AD2d 537, 538 [2003]). In any event, viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620, 621 [1983]), the evidence of "impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]) was legally sufficient to support the conviction (People v Chiddick, 8 NY3d 445, 447 [2007]; People v Henderson, 92 NY2d 677, 680 [1999]; People v Travis, 273 AD2d 544, 548 [2000]; People v Goode, 179 AD2d 676 [1992]).

In conducting an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), and according the appropriate deference to the jurors' credibility determinations, based on their particular opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the judgment of conviction was not against the weight of the evidence.

With respect to the effectiveness of the assistance of trial counsel, in the absence of a motion challenging the representation of trial counsel, whereby matters of strategy and other factors relevant to evaluating the effectiveness of counsel might be explored (see CPL 440.10; People v Rivera, 71 NY2d 705, 709 [1988]), we are relegated to reviewing the performance of trial counsel "[t]o the extent that the existing record permits" (People v Lopez, 2 AD3d 234 [2003]) and without "resorting to supposition and conjecture" (People v Rivera, 71 NY2d at 709). The available record reveals that, in general, trial counsel "exhibited a grasp of the facts and applicable law" (People v Bobrowsky, 23 Misc 3d 137[A], 2009 NY Slip Op 50862[U], *2 [App Term, 9th & 10th Jud Dists 2009]), and was an active participant in the proceedings, marshaling competent, if not always successful, arguments with respect to the admissibility and significance of evidence, vigorously cross-examining the People's witnesses, and offering a lengthy summation wherein counsel articulated a coherent theory of the inadequacy of the proof of guilt. In light of that proof and "the circumstances of [the] particular case, viewed in totality and as of the time of the representation," we find that defendant's right to the effective assistance of counsel was satisfied (People v Henry, 95 NY2d 563, 565 [2000]).

We have considered defendant's remaining contentions and find them to be either unpreserved (People v Beam, 78 AD3d 1067, 1068 [2010]) or without merit (People v Way, 69 AD3d 964, 965 [2010]; People v Johnson, 45 AD3d 606 [2007]; People v Cato, 5 AD3d 394 [2004]; People v Bethune, 105 AD2d 262, 269 [1984]).

Accordingly, the judgment of conviction, insofar as appealed from, is affirmed.

Iannacci, J.P., Nicolai and Molia, JJ., concur.

Decision Date: May 21, 2012

20120521

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