Opinion
1228 KA 16-01154
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Joseph P. GANT, Defendant-appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It 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, inter alia, murder in the second degree ( Penal Law § 125.25 [1] ) and three counts of attempted murder in the second degree ( §§ 110.00, 125.25 [1] ). We affirm.
Defendant initially contends that he was convicted of three counts of what he characterizes as the "non-existent crime" of "transferred intent attempted murder." Although exempt from the preservation requirement (see People v. Martinez , 81 N.Y.2d 810, 812, 595 N.Y.S.2d 376, 611 N.E.2d 277 [1993] ), defendant's argument was expressly rejected by the Court of Appeals in People v. Fernandez, 88 N.Y.2d 777, 782-783, 650 N.Y.S.2d 625, 673 N.E.2d 910 (1996) ; see also People v. Wells , 7 N.Y.3d 51, 55-57, 817 N.Y.S.2d 590, 850 N.E.2d 637 (2006).
Contrary to defendant's further contention, the evidence is legally sufficient to support the conviction of murder in the second degree and attempted murder in the second degree, and the verdict on those crimes is not against the weight of the evidence when viewed in light of the elements of the crimes and the justification instruction as given to the jury (see generally People v. Danielson , 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Indeed, the trial evidence overwhelmingly disproved defendant's justification defense (see People v. Cruz , 175 A.D.3d 1060, 1060-1061, 108 N.Y.S.3d 620 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 756, 138 N.E.3d 485 [2019] ; People v. Newland , 83 A.D.3d 1202, 1204-1205, 921 N.Y.S.2d 396 [3d Dept. 2011], lv denied 17 N.Y.3d 798, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] ), and an acquittal on justification grounds would have been unreasonable on this record (see People v. Durand , 188 A.D.2d 747, 747, 591 N.Y.S.2d 233 [3d Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 946, 613 N.E.2d 978 [1993] ). We note, however, that the People's brief incorrectly asserts that reversal on weight of the evidence grounds "is warranted only where the verdict is ‘plainly unjustified by the evidence’ " (see People v. Sanchez , 32 N.Y.3d 1021, 1022-1023, 112 N.E.3d 312 [2018] ). The proper standard for conducting weight of the evidence review is set forth in People v. Delamota, 18 N.Y.3d 107, 116-117, 936 N.Y.S.2d 614, 960 N.E.2d 383 (2011) ) and Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1.
Defendant waived his challenge to the jury instructions concerning mens rea by expressly consenting to the subject charge (see People v. Capella , 180 A.D.3d 498, 499, 119 N.Y.S.3d 454 [1st Dept. 2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 25, 148 N.E.3d 489 [2020] ; People v. Speed , 226 A.D.2d 1090, 1091, 641 N.Y.S.2d 937 [4th Dept. 1996], lv denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355 [1996] ). Defendant's related claim of ineffective assistance is raised for the first time in his reply brief and thus is not properly before us (see People v. Jones , 300 A.D.2d 1119, 1120, 751 N.Y.S.2d 811 [4th Dept. 2002], lv denied 2 N.Y.3d 801, 781 N.Y.S.2d 300, 814 N.E.2d 472 [2004] ). The sentence is not unduly harsh or severe. Defendant's remaining contention does not warrant modification or reversal of the judgment.