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PEOPLE v. LUMPKIN, 2011 NY Slip Op 09699 (2011)

Court: Supreme Court of New York Number: innyco20120130245 Visitors: 2
Filed: Dec. 30, 2011
Latest Update: Dec. 30, 2011
Summary: It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law 120.10 [1]) and gang assault in the second degree ( 120.06), defendant contends that the evidence is legally insufficient to support the conviction. Defendant failed to preserve his contention for our review both because his motion for a trial order of dismissal was not specifically directed at th
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It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law § 120.10 [1]) and gang assault in the second degree (§ 120.06), defendant contends that the evidence is legally insufficient to support the conviction. Defendant failed to preserve his contention for our review both because his motion for a trial order of dismissal was not specifically directed at the alleged deficiencies identified on appeal (see People v Gray, 86 N.Y.2d 10, 19; People v Adair, 84 A.D.3d 1752, 1753, lv denied 17 N.Y.3d 812), and because he failed to renew his motion after presenting evidence (see People v Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). In any event, that contention is without merit (see generally People v Bleakley, 69 N.Y.2d 490, 495).

Contrary to defendant's further contention, County Court properly denied, without conducting a hearing, his motion pursuant to CPL 330.30 (1) to set aside the verdict (see generally People v Carter, 63 N.Y.2d 530, 536; People v Morgan, 77 A.D.3d 1419, 1420, lv denied 15 N.Y.3d 922). We also reject defendant's contention that he received ineffective assistance of counsel (see generally People v Baldi, 54 N.Y.2d 137, 147). Rather, we conclude that the "cumulative effect of defense counsel's alleged deficiencies, viewed in totality and as of the time of the representation, did not deprive defendant of effective assistance of counsel" (People v Marcial, 41 A.D.3d 1308, 1309, lv denied 9 N.Y.3d 878). Finally, the sentence is not unduly harsh or severe.

Source:  Leagle

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