Opinion
2012-03-23
The PEOPLE of the State of New York, Respondent, v. Jeffrey PEARSON, Defendant–Appellant.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered June 22, 2010. The judgment convicted defendant, upon a nonjury verdict, of attempted murder in the second degree, aggravated criminal contempt and aggravated harassment in the second degree.The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for defendant-appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of Counsel), for respondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered June 22, 2010. The judgment convicted defendant, upon a nonjury verdict, of attempted murder in the second degree, aggravated criminal contempt and aggravated harassment in the second degree.The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for defendant-appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a nonjury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), aggravated criminal contempt (§ 215.52[1] ) and aggravated harassment in the second degree (§ 240.30[1] ). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish his intent to kill the victim inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention is without merit ( see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1). County Court reasonably could have inferred such intent from defendant's numerous threats to kill the victim and his subsequent conduct of stabbing the victim five times in the chest ( see People v. Massey, 61 A.D.3d 1433, 1433–1434, 877 N.Y.S.2d 589, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018; People v. Ortiz, 212 A.D.2d 444, 445, 622 N.Y.S.2d 934, lv. denied 85 N.Y.2d 941, 627 N.Y.S.2d 1003, 651 N.E.2d 928). Contrary to defendant's further contention, the court was not empowered to consider the lesser included offense of assault in the second degree (§ 120.05[1] ) because there is no “ reasonable view of the evidence ... that would support a finding that” defendant intended to cause serious physical injury to the victim but did not intend to kill her ( People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). Viewing the evidence in light of the elements of the crime of attempted murder in the second degree in this nonjury trial ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict with respect to that crime is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Although defendant contends that the court erred in refusing to suppress statements that he made to police after he was arrested, such statements were never used at trial, and thus defendant's contention is moot. The sentence is not unduly harsh or severe. We have considered defendant's remaining contention and conclude that it is without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.