Opinion
949 KA 17–00457
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Jerami LOZADA, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ELIZABETH RIKER OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3] ), defendant contends that the conviction of murder in the second degree is not supported by legally sufficient evidence with respect to the issue of his intent, and that the verdict is contrary to the weight of the evidence regarding that issue. Initially, we note that defendant failed to preserve his legal sufficiency contention for our review inasmuch as he failed to move for a trial order of dismissal on that ground (see People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532 [2010] ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, defendant's contention lacks merit. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction of murder in the second degree (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "The element of intent is rarely proved ‘by an explicit expression of culpability by the perpetrator’ " ( People v. Bueno, 18 N.Y.3d 160, 169, 936 N.Y.S.2d 636, 960 N.E.2d 405 [2011], quoting People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071 [1980] ). "It is well established that a defendant's [i]ntent to kill may be inferred from [his] conduct as well as the circumstances surrounding the crime ..., and that a jury is entitled to infer that a defendant intended the natural and probable consequences of his acts" ( People v. Hough, 151 A.D.3d 1591, 1593, 57 N.Y.S.3d 780 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] [internal quotation marks omitted] ). Here, the People presented evidence that the victim was unarmed and killed by a single gunshot to the head, fired by defendant at very close range, while the victim was holding groceries and beer in his hands. Consequently, we conclude that the evidence was legally sufficient to establish defendant's intent to kill the victim. In addition, viewing the evidence in light of the elements of the crime of murder in the second degree as charged to the jury (see 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 with respect to that crime is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention, County Court did not err in imposing consecutive sentences on the count of murder in the second degree and the count of criminal possession of a weapon in the second degree under Penal Law § 265.03(3). Contrary to the People's contention, "[a]lthough defendant ... failed to preserve for our review his contention that the court erred in imposing consecutive sentences, preservation of that contention is not required" ( People v. Ferguson–Johnson, 55 A.D.3d 1340, 1340–1341, 865 N.Y.S.2d 802 [4th Dept. 2008], lv denied 11 N.Y.3d 897, 873 N.Y.S.2d 273, 901 N.E.2d 767 [2008] ; see People v. Houston, 142 A.D.3d 1397, 1399, 38 N.Y.S.3d 368 [4th Dept. 2016], lv denied 28 N.Y.3d 1146, 52 N.Y.S.3d 297, 74 N.E.3d 682 [2017] ).
With respect to the merits, where a defendant is charged with criminal possession of a weapon pursuant to Penal Law § 265.03(3), as well as a crime involving use of that weapon, "[s]o long as [the] defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible" ( People v. Brown, 21 N.Y.3d 739, 751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ). Here, "the evidence [is] legally sufficient to establish that he possessed the murder weapon in the car on the way to the shooting, and thus ‘there was a completed possession, within the meaning of [ section 265.03(3) ], before the shooting took place’ " ( People v. Evans, 132 A.D.3d 1398, 1399, 17 N.Y.S.3d 576 [4th Dept. 2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ). Defendant's contention concerning the location of the crime as set forth in the indictment as limited by the bill of particulars does not require a different result, inasmuch as the bill of particulars indicated that the possession in violation of section 265.03(3) took place at a specific address, and the evidence is sufficient to establish that defendant possessed the weapon in a car in the parking lot at that address before he formed the intent to shoot the victim with it.
We reject defendant's contention that he was denied effective assistance of counsel based on his attorney's failure to conduct an adequate cross-examination of certain prosecution witnesses. Contrary to defendant's contention, "[s]peculation that a more vigorous cross-examination might have [undermined the credibility of a witness] does not establish ineffectiveness of counsel" ( People v. Adams, 247 A.D.2d 819, 819, 668 N.Y.S.2d 844 [4th Dept. 1998], lv denied 91 N.Y.2d 1004, 676 N.Y.S.2d 132, 698 N.E.2d 961 [1998] ; see People v. Black, 137 A.D.3d 1679, 1680, 27 N.Y.S.3d 776 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016], reconsideration denied 28 N.Y.3d 1026, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ; People v. Bassett, 55 A.D.3d 1434, 1438, 866 N.Y.S.2d 473 [4th Dept. 2008], lv denied 11 N.Y.3d 922, 874 N.Y.S.2d 7, 902 N.E.2d 441 [2009] ). Upon review of the record, we conclude that "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defendant's] attorney provided meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, the sentence is not unduly harsh or severe.