Opinion
May 14, 1979
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 2, 1978, upon resentence. Judgment affirmed and case remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5). Assuming, arguendo, that the arguments raised by defendant are properly before this court, we find them to be without merit. Not only did the original trial court properly instruct the jury on the need for the People to prove specific intent with respect to attempted murder but, in this oft-reviewed case, the Court of Appeals found that there was "sufficient evidence in the record from which the jury could conclude that the defendant believed Geller to be alive at the time defendant fired shots into Geller's head. Defendant admitted firing five shots at a most vital part of the victim's anatomy from virtually point blank range. Although defendant contended that the victim had already been grievously wounded by another, from the defendant's admitted actions, the jury could conclude that the defendant's purpose and intention was to administer the coup de grace" (People v Dlugash, 41 N.Y.2d 725, 735). Furthermore, defendant's continued contention that the modification of the original verdict deprived him of a jury trial is meritless. That argument was before the Court of Appeals on the original appeal and before this court on the subsequent remand from the Court of Appeals (see People v Dlugash, 59 A.D.2d 745). Titone, J.P., Suozzi, Lazer and Cohalan, JJ., concur.