Opinion
July 12, 1996
Appeal from the Erie County Court, Drury, J.
Present — Green, J.P., Lawton, Fallon, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree in the strangulation death of Patricia Ferguson. By failing to make a motion to dismiss at the close of the People's proof addressed specifically to the failure of proof on the element of intent, defendant failed to preserve for review his present argument that the evidence is insufficient to prove that he intended to kill the victim ( see, People v McCall, 88 N.Y.2d 838; People v. Wosu, 87 N.Y.2d 935; People v Gray, 86 N.Y.2d 10, 19). In any event, the proof adduced at trial concerning the circumstances surrounding the death of the victim, viewed in the light most favorable to the People, is sufficient to prove that defendant intended to kill her ( see, People v Steinberg, 79 N.Y.2d 673, 681-682; People v. Wallace, 217 A.D.2d 918, lv denied 86 N.Y.2d 847). The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).
The determination of the Huntley court, that defendant was not in custody in the police car on the way to the victim's home, is supported by the record and should not be disturbed ( see, People v. Prochilo, 41 N.Y.2d 759, 761). Defendant had turned himself in to the police and had voluntarily agreed to accompany them to the victim's home to verify that there had been a crime. Defendant was not handcuffed and he entered the police vehicle voluntarily. The fact that defendant was frisked pursuant to standard police policy before he entered the police vehicle is not dispositive on the issue of custody ( see, People v. Morales, 65 N.Y.2d 997, 998).
In light of the violent nature of the crime, we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice ( see, CPL 470.15 [b]).