Opinion
932 KA 17-00556
03-19-2021
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. CHRISTOPHER PEARSON, DEFENDANT-APPELLANT PRO SE. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
CHRISTOPHER PEARSON, DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, 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 attempted murder in the second degree ( Penal Law §§ 110.00, 125.25 [1] ), attempted assault in the first degree ( §§ 110.00, 120.10 [1] ), and assault in the second degree (§ 120.05 [2]).
Defendant contends in his main and pro se supplemental briefs that the evidence is legally insufficient to establish that he had the intent to cause the death of the victim or the intent to cause serious physical injury to the victim. By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve his challenge to the legal sufficiency of the evidence (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Hunt , 185 A.D.3d 1531, 1532, 127 N.Y.S.3d 674 [4th Dept. 2020] ). In any event, 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 conviction of attempted murder in the second degree and attempted assault in the first degree is based on legally sufficient evidence (see People v. Caldwell , 98 A.D.3d 1272, 1272-1273, 951 N.Y.S.2d 293 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ; People v. Payne , 71 A.D.3d 1289, 1291-1292, 897 N.Y.S.2d 292 [3d Dept. 2010], lv denied 15 N.Y.3d 777, 907 N.Y.S.2d 465, 933 N.E.2d 1058 [2010] ). The evidence submitted by the People established that defendant and another man went to the victim's house, where defendant and the victim had a verbal argument. Defendant then directed the other man to "shoot that bitch." The victim and two witnesses testified that the man with defendant fired in the victim's direction multiple times, striking her once. The victim was standing on her porch, and the man firing the gun was standing close by in the street. The jury could thereby infer from the evidence a shared intent to cause the victim's death and to cause serious physical injury (see People v. Harper , 132 A.D.3d 1230, 1232, 17 N.Y.S.3d 797 [4th Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ; People v. Menese , 210 A.D.2d 22, 22-23, 619 N.Y.S.2d 28 [1st Dept. 1994], lv denied 85 N.Y.2d 912, 627 N.Y.S.2d 335, 650 N.E.2d 1337 [1995] ; see generally People v. Steinberg , 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992] ). In addition, viewing the evidence in light of the elements of the crimes of attempted murder in the second degree and attempted assault in the first 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 further conclude that the verdict with respect to those crimes 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 [1987] ).
Defendant contends in his main brief that the verdict is inconsistent insofar as the jury found him guilty of both the attempted murder count and the attempted assault count. He further contends in his main and pro se supplemental briefs that County Court should have submitted those counts to the jury in the alternative. Defendant's contentions are not preserved for our review because he did not object to the court's charge and did not object to the verdict as inconsistent before the jury was discharged (see People v. Simmons , 155 A.D.2d 893, 893, 548 N.Y.S.2d 955 [4th Dept. 1989], lv denied 75 N.Y.2d 818, 552 N.Y.S.2d 568, 551 N.E.2d 1246 [1990] ). In any event, defendant's contentions are without merit. "One may harbor, at the same time, both an intent to cause serious physical injury and an intent to cause death" ( People v. McDavis , 97 A.D.2d 302, 305, 469 N.Y.S.2d 508 [4th Dept. 1983], lv denied 61 N.Y.2d 910, 474 N.Y.S.2d 1033, 462 N.E.2d 1211 [1984] ).
Defendant's contention in his main brief that he was denied due process of law when a witness made an in-court identification of him despite the fact that the court precluded that identification as the result of an unduly suggestive pretrial identification is not preserved for our review (see People v. Roberson , 133 A.D.3d 793, 793, 20 N.Y.S.3d 383 [2d Dept. 2015], lv denied 27 N.Y.3d 968, 36 N.Y.S.3d 629, 56 N.E.3d 909 [2016] ). In any event, the error is harmless inasmuch as the evidence is overwhelming and there is no reasonable possibility that the error might have contributed to defendant's conviction (see generally People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). Defendant's identity as the man arguing with the victim before she was shot was not at issue at trial (see People v. Adams , 53 N.Y.2d 241, 251-252, 440 N.Y.S.2d 902, 423 N.E.2d 379 [1981] ; People v. Davis , 15 A.D.3d 930, 931, 788 N.Y.S.2d 782 [4th Dept. 2005], lv denied 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265 [2005] ).
Defendant's contention in his main brief that the sentence constitutes cruel and unusual punishment is not preserved for our review (see People v. Pena , 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 [2017] ; People v. Bailey , 181 A.D.3d 1172, 1175, 118 N.Y.S.3d 351 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 21, 149 N.E.3d 859 [2020] ). Finally, contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe.