SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
95
KA 08-00133
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GEORGE C. HERRING, DEFENDANT-APPELLANT.
STEPHEN BIRD, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered December 12, 2007. The judgment convicted
defendant, upon a jury verdict, of attempted aggravated murder,
attempted aggravated assault upon a police officer or a peace officer,
criminal possession of a weapon in the second degree, criminal
possession of a weapon in the third degree and criminal possession of
stolen property in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, attempted aggravated murder (Penal
Law §§ 110.00, 125.26 [1] [a] [i]; [b]) and attempted aggravated
assault upon a police officer or a peace officer (§§ 110.00, 120.11).
Contrary to defendant’s contention, the verdict is not against the
weight of the evidence. A police officer testified that he was
responding to a dispatch regarding multiple gun shots fired when he
encountered defendant, who matched the description of one of the
suspects. The officer exited his vehicle and shouted to defendant to
“hold up a second.” Defendant at first lunged forward as if he were
preparing to run away, but then he suddenly stopped, turned around,
said “F*** this,” and pulled out a handgun and fired three shots in
the officer’s direction. After a foot chase, defendant was
apprehended in a backyard. The following morning, the police found a
handgun on a rooftop in the vicinity of the backyard where defendant
had been arrested, and a ballistics test determined that it was the
gun that had fired three casings collected at the scene of the crime.
After defendant was arrested, an officer observed that defendant had a
cut on his hand between his thumb and index finger, and the previous
owner of the handgun testified that he had sustained a similar cut on
his hand after firing the weapon. Finally, the People introduced
evidence that DNA from a bloodstain found on the gun matched
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KA 08-00133
defendant’s DNA. Viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that a different verdict would have been
unreasonable and thus that the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
We reject defendant’s contention that defense counsel’s summation
deprived him of the effective assistance of counsel. Defense
counsel’s theory of police fabrication and malfeasance was “ ‘a
reasonable trial strategy in the face of strong opposing evidence’ ”
(People v Maxwell, 103 AD3d 1239, 1241, lv denied 21 NY3d 945; see
People v Zada [appeal No. 1], 98 AD2d 733, 733; see generally People v
Benevento, 91 NY2d 708, 712-713). Finally, the sentence is not unduly
harsh or severe.
Entered: February 3, 2017 Frances E. Cafarell
Clerk of the Court