Opinion
KA 01-01260
June 14, 2002.
Appeal from a judgment of Onondaga County Court (Aloi, J.), entered October 20, 2000, convicting defendant after a jury trial of, inter alia, murder in the first degree (two counts).
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (GERALD T. BARTH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. ANTHONY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of two counts of murder in the first degree (Penal Law § 125.27 [a] [vii]; [b]) and one count of criminal possession of a weapon in the third degree (§ 265.02 [1]), and sentencing him to concurrent terms of imprisonment, the longest of which is life imprisonment without parole. Defendant contends that the evidence is legally insufficient to support the conviction of either count of murder because there is insufficient evidence of intent, forcible rape and forcible sodomy ( see § 125.27 [1] [a] [vii]). We reject that contention. The version of defendant that the victim engaged in consensual sex and that defendant lacked the requisite intent contained unexplained contradictions and was inconsistent with the physical evidence presented at trial. We conclude that there is a "valid line of reasoning and permissible inferences which [would] lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged" ( People v. Bleakley, 69 N.Y.2d 490, 495).
Defendant further contends that he was deprived of a fair trial by prosecutorial misconduct. Many of the alleged instances of misconduct are not preserved for our review ( see CPL 470.05), and we conclude that the alleged misconduct was not so egregious that defendant was thereby deprived of his right to a fair trial ( see People v. Rubin, 101 A.D.2d 71, 77, lv denied 63 N.Y.2d 711; see generally People v. Galloway, 54 N.Y.2d 396, 401). The sentence is not unduly harsh or severe.