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The People of the State of New York, Respondent v. Elizabeth Cherry

New York Supreme and/or Appellate Courts Appellate Division, First Department


March 12, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ELIZABETH CHERRY, DEFENDANT-APPELLANT.

People v Cherry

Decided on March 12, 2013

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, DeGrasse, Manzanet-Daniels, Clark, JJ.

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered October 11, 2011, convicting defendant, after a non-jury trial, of criminal trespass in the second degree, criminal mischief in the fourth degree, and attempted assault in third degree, and sentencing her to a term of three years' probation, unanimously modified, on the law, to the extent of vacating the attempted assault conviction, dismissing that count, and remanding for resentencing on the remaining convictions, and otherwise affirmed.

The count of the information charging attempted assault in the third degree is jurisdictionally defective (see generally People v Alejandro, 70 NY2d 133 [1987]) because it fails to contain allegations establishing or providing reasonable cause to believe that defendant intended to cause physical injury to the victim. At most, the factual allegations support an inference that defendant pushed her former boyfriend in an effort to enter his apartment, and then his living room; there was nothing to support an inference of intent to injure. In any event, the verdict convicting defendant under that count was against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

We remand for plenary resentencing proceedings on the remaining convictions, both as a matter of discretion under CPL 470.30(3) and because resentencing is required as a matter of law. The sentencing court violated defendant's constitutional right to self-representation by summarily denying, without inquiry, defendant's request to represent herself at sentencing. Regardless of any ambiguity in defendant's written application, her subsequent application, conveyed through counsel at the sentencing proceeding, was clear and unequivocal (see People v McIntyre, 36 NY2d 10, 17 [1974]) People v Arroyo, 98 NY2d 101, 103-04 [2002]). Since the harm to defendant is denial of her right of self-representation (see Faretta v California, 422 US 806 [1975]), there is no need for her to make any further showing of prejudice.

In view of this determination, it is unnecessary to consider defendant's remaining contentions. M-802 -People v Elizabeth Cherry

Motion to file pro se supplemental brief denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 12, 2013

CLERK

20130312

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