People v Boss (Gerard)

[*1] People v Boss (Gerard) 2005 NY Slip Op 52126(U) [10 Misc 3d 136(A)] Decided on December 19, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2002-1602 OR CR

The People of the State of New York, Respondent,

against

Gerard F. Boss, Jr., Appellant.

Consolidated appeal from 1) judgments of the Justice Court of the Town of Wallkill, Orange County (Raymond Shoemaker, J.), rendered October 17, 2002 and 2) an order of the same court, entered April 2, 2004 as amended by order dated June 22, 2005. Each judgment convicted defendant, upon a jury verdict, of menacing in the second degree, attempted assault in the third degree and harassment in the second degree. The order denied defendant's motion to vacate the judgments.

Judgments of conviction unanimously modified on the law and facts by vacating the convictions of attempted assault in the third degree and dismissing said charges; as so modified, affirmed.

Order unanimously affirmed.

Although no claim of evidentiary insufficiency is preserved for our review (CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]), we exercise our discretion in the interest of justice and vacate the convictions of attempted assault in the third degree. In our view, the trial evidence was legally insufficient to demonstrate beyond a reasonable doubt that in brandishing his cane, defendant did so in "dangerous proximity" to carrying out the substantive criminal end (People v Bracey, 41 NY2d 296, 300 [1977]; compare Matter of Jonathan M., 4 AD3d 154, 155 [2004]; Matter of Marcel F., 233 AD2d 442, 442-443 [1996]; Matter of John C., 186 AD2d 493 [1992], with Matter of Agzim S., 309 AD2d 532, 533 [2003]). We have reviewed defendant's remaining
contentions and find them unpreserved or without merit (People v Henry, 95 NY2d 563
[2000]; People v Spears, 64 NY2d 698, 699 [1984]; People v Baldi, 54 NY2d 137 [1981]; People [*2]v Medina, 53 NY2d 951, 953 [1981]; People v Cunningham, 301 AD2d 955, 956 [2003]; People v Velasquez, 187 AD2d 277 [1992]).
Decision Date: December 19, 2005