People v. Veras

Court: Appellate Division of the Supreme Court of the State of New York
Date filed: 1991-08-08
Citations: 175 A.D.2d 710
Copy Citations
1 Citing Case
Lead Opinion

— Judgment, Supreme Court, Bronx County (William Martin, J.), rendered November 28, 1988, convicting defendant after a trial by jury of manslaughter in the first degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree, and sentencing him to two consecutive, indeterminate terms of

Page 711
imprisonment of 8 Vis to 25 years and a concurrent, indeterminate term of 5 to 15 years, affirmed.

Defendant’s conviction arose from a shooting which took place in a Jerome Avenue park on the afternoon of August 2, 1986. The complaining witness was sitting on a bench with a woman friend when defendant, whom they apparently both knew, started to curse at them, called them traitors and said he was glad of the opportunity to kill both of them, and began shooting. While the woman was initially wounded in the leg, the complainant testified that he managed to escape unharmed only because the first two shots at him misfired and the third narrowly missed him as he was running away. After the complainant fled, and with eyewitnesses watching from a nearby window, defendant then shot the woman twice more as she tried to crawl away, causing her death.

Twice before the case came to trial, defendant moved to relieve assigned counsel, and he now claims that those motions were improperly denied without a hearing or further inquiry. The record, however, reveals that the motions made no allegations which indicated the existence of a serious possibility of an irreconcilable conflict and that further inquiry was therefore not required (see, People v Sides, 75 NY2d 822). In addition to boilerplate language derived from a preprinted form, defendant’s motions consisted primarily of conclusory allegations, i.e., that counsel had lied to him, that counsel had failed to make unspecified motions and that there was an undefined conflict of interest. Moreover, defendant’s more specific contention that counsel never informed him that the maximum sentence he faced was 15 years to life obviously did not demonstrate that counsel had misinformed the defendant, since clearly the defendant faced a much higher sentence if convicted of murder in the second degree. Indeed, elsewhere in the record, extensive colloquy reveals that defendant had a full and complete understanding of the plea offer he had been made and of the potential sentence he faced. Defendant’s contention that counsel had not prepared a proper defense as to his mental state was belied, as the court stated, by the fact that "numerous psychiatric interviews and investigations” had already been conducted relevant to that issue. Finally, defendant’s request for a Spanish speaking attorney was properly denied.

At trial, defendant was acquitted of murder in the second degree of the deceased victim and convicted of the lesser included charge of manslaughter in the first degree, based on the jury’s finding that he was acting under an extreme emo

Page 712
tional disturbance. (Penal Law § 125.25 [1] [a]; § 125.20.) Defendant now argues that the court erred in failing to sua sponte charge the jury with attempted manslaughter in the first degree as a lesser included charge of the attempted murder in the second degree of the surviving victim. However, that issue is not preserved since defendant never requested such a charge to the attempted murder and has therefore waived any argument that it was warranted. Moreover, the failure to so charge in the absence of a request "does not constitute error”. (CPL 300.50 [2]; see also, People v Harris, 109 AD2d 351.)

As to the ineffective assistance of trial counsel argument, the record as it stands, viewed in totality, reveals that defendant’s trial attorney provided meaningful representation. (People v Baldi, 54 NY2d 137, 147.)

We find no merit to defendant’s claim that sentence was imposed improperly. Concur — Murphy, P. J., Milonas, Ellerin and Wallach, JJ.