Opinion
453 KA 16–00642
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Pascual CRUZ, Defendant–Appellant.
THOMAS J. EOANNOU, BUFFALO, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THOMAS J. EOANNOU, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt 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 attempted murder in the second degree ( Penal Law §§ 110.00, 125.25[1] ) and criminal use of a firearm in the first degree (§ 265.09[1][a] ). Upon our independent review of the evidence in light of both the elements of the crimes as charged to the jury and the justification charge (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Gaillard , 162 A.D.3d 1205, 1206–1207, 78 N.Y.S.3d 805 [3d Dept. 2018], lv denied 32 N.Y.3d 1064, 89 N.Y.S.3d 118, 113 N.E.3d 952 [2018] ; see generally People v. Sanchez , 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ; People v. Kancharla , 23 N.Y.3d 294, 302–303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ). Contrary to defendant's further contention, Supreme Court properly denied his Batson applications (see People v. Linder , 170 A.D.3d 1555, 1556–1558, 95 N.Y.S.3d 681 [4th Dept. 2019] ; People v. Burgess , 128 A.D.3d 530, 532, 10 N.Y.S.3d 26 [1st Dept. 2015], lv denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015] ).