DAVIS, ANTOINE, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

348 KA 10-00464 PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

ANTOINE DAVIS, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered January 7, 2010. The judgment convicted defendant, upon a nonjury verdict, of attempted assault in the first degree, endangering the welfare of a child, menacing in the second degree and aggravated harassment in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]). Contrary to defendant’s contention, his conviction of attempted assault is supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495). Defendant’s conduct of dousing his intended victim in lighter fluid and threatening to burn her “went far beyond mere discussion of a crime . . . and beyond [threatening] to commit a crime . . ., and even beyond arming [himself] in preparation for a crime” (People v Mahboubian, 74 NY2d 174, 191; see generally People v Adams, 222 AD2d 1124, lv denied 87 NY2d 1016; People v Johnson, 186 AD2d 363, lv denied 81 NY2d 763). Viewing the evidence in light of the elements of the crime of attempted assault in the first degree in this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s further contention that the verdict with respect to that count is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). We also reject defendant’s contention that reversal is warranted based upon the court’s failure to make a sufficient inquiry whether defendant was aware of the potential risks associated with defense counsel’s prior representation of a prosecution witness and whether defendant wished to proceed with defense counsel despite any potential conflict (see generally People v Gomberg, 38 NY2d 307, 313-314). “[D]efendant failed to meet his

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burden of establishing that ‘the conduct of his defense was in fact affected by the operation of the conflict of interest’ ” (People v Smart, 96 NY2d 793, 795, quoting People v Alicea, 61 NY2d 23, 31).

Entered: April 29, 2011 Patricia L. Morgan Clerk of the Court