Brafman & Associates, P.C, New York (Mark M. Baker of
counsel), for Adriano Smajlaj, appellant.
Mischel & Horn, P.C., New York (Richard E. Mischel of
counsel), for Arjan Smajlaj, appellant.
R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen
of counsel), for respondent.
Richter, J.P., Manzanet-Daniels, Andrias, Kapnick, Webber,
Supreme Court, New York County (Daniel P. Conviser, J.),
rendered January 17, 2017, convicting defendant Adriano
Smajlaj, after a nonjury trial, of attempted assault in the
first degree, attempted gang assault in the first degree and
assault in the second degree, and sentencing him to an
aggregate term of 3½ years, unanimously modified, on
the law, to the extent of vacating the second-degree assault
conviction and dismissing that charge, and otherwise
affirmed. Judgment, same court, Justice and date, convicting
defendant Arjan Smajlaj, after a nonjury trial, of two counts
of criminal possession of a weapon in the second degree, and
sentencing him to concurrent terms of four years, unanimously
verdicts convicting both defendants were supported by legally
sufficient evidence, and were not against the weight of the
evidence (see People v Danielson, 9 N.Y.3d 342,
348-349 ). There is no basis for disturbing the
court's credibility determinations.
defendant Arjan Smaljaj, his act of displaying a loaded
pistol, racking the slide, and aiming it at the victim during
an altercation sufficed to show he intended to use it
unlawfully (People v Toribio, 216 A.D.2d 189, 189
[1st Dept 1995], lv denied 87 N.Y.2d 908');">87 N.Y.2d 908 ).
The evidence also supports the conclusion that the pistol
recovered by the police was the same pistol wielded by Arjan.
perceive no basis for either vacating Arjan's conviction
or reducing his sentence in the interest of justice.
defendant Adriano Smaljaj, the evidence showed that he
stabbed the victim in the stomach, resulting in an abdominal
wound close to the victim's vital organs and that he did
so with the intent to cause serious physical injury (see
People v Gilford, 65 A.D.3d 840');">65 A.D.3d 840 [1st Dept 2009],
affd 16 N.Y.3d 864');">16 N.Y.3d 864 ).
court properly denied Adriano's request to consider the
defenses of justification and intoxication. There was no
reasonable view of the evidence, viewed most favorably to
Adriano, that would support a conclusion that he reasonably
believed the victim was about to use deadly physical force,
or that, at the actual time of the incident, he was so
intoxicated he could not form the requisite intent.
the court acquitted Adriano of the charge of first-degree
assault, and convicted him of attempted first-degree assault
as a lesser included offense, it should not have gone on to
convict him of second-degree assault as an additional, lesser
included offense of first-degree assault (see CPL
300.50). Accordingly, the conviction of second-degree
assault is vacated and the charge dismissed (People v
Stevenson, 157 A.D.2d 563, 566 [1st Dept 1990], lv
denied 77 N.Y.2d 882');">77 N.Y.2d 882 ).
court's verdicts convicting Adriano of attempted gang
assault in the first degree but acquitting Arjan and a third
defendant were not repugnant. Even assuming, without
deciding, that the general principles expressed in People
v Tucker (55 N.Y.2d 1');">55 N.Y.2d 1 ) upholding factually
illogical verdicts are not necessarily applicable to a
nonjury trial, we find that the court had a basis on which to
find that only Adriano had the intent to cause serious
physical injury to the victim, and that the others aided him,
but did so with a culpable mental state that fell short of
Adriano's (see People v Sanchez, 13 N.Y.3d 554');">13 N.Y.3d 554,
564 ; People v Mynin, 58 A.D.3d 581');">58 A.D.3d 581 [1st Dept
2009], affd 13 N.Y.3d 554');">13 N.Y.3d 554 ).
we find that Adriano's statement to detectives, as
testified to at trial and at the suppression hearing, was in
sum and substance the same as the noticed statement (see
generally CPL 710.30; People v Lopez, 84 N.Y.2d
425, 428 ). Moreover, ...