| People v Barker |
| 2015 NY Slip Op 08908 |
| Decided on December 3, 2015 |
| Appellate Division, First Department |
| 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. |
Decided on December 3, 2015
Tom, J.P., Sweeny, Andrias, Gische, JJ.
16264 6093/10
v
Marc Barker, Defendant-Appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered April 25, 2012, convicting defendant, after a jury trial, of assault in the first and second degrees and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to an aggregate term of 20 years, unanimously modified, on the law, to the extent of vacating the second violent felony offender adjudication as to the weapon possession conviction only and remanding for resentencing on that count, and otherwise affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The record supports the conclusion that the victim's facial scars were seriously disfiguring under the standard set forth in People v McKinnon (15 NY3d 311, 315-316 [2010]), thereby satisfying the element of serious physical injury. We have considered and rejected defendants ineffective assistance of counsel claim relating to this issue.
As the People concede, defendant may not be sentenced as a second violent felony offender on his weapon conviction (Penal Law § 265.02[1]), which is not enumerated as a violent felony.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 3, 2015
CLERK