Opinion
1301 KA 12-00569.
02-05-2016
The PEOPLE of the State of New York, Respondent, v. Guillermo TORRES, III, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of Counsel), for Defendant–Appellant. Guillermo Torres, III, Defendant–Appellant Pro Se. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of Counsel), for Defendant–Appellant.
Guillermo Torres, III, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Opinion
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.251 ) and assault in the first degree (§ 120.101 ), defendant contends that the evidence is legally insufficient to support the conviction of attempted murder because the People failed to prove the element of intent. Defendant failed to preserve that contention for our review, however, “because his motion for a trial order of dismissal was not specifically directed at the ground[ ] advanced on appeal and because he failed to renew his motion after presenting evidence” (People v. Wright, 107 A.D.3d 1398, 1401, 967 N.Y.S.2d 296, lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289; 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; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, the contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). It is well established that “[i]ntent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime” (People v. Lopez, 96 A.D.3d 1621, 1622, 946 N.Y.S.2d 780 [internal quotation marks omitted], lv. denied 19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920; see People v. Price, 35 A.D.3d 1230, 1231, 825 N.Y.S.2d 868, lv. denied 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462). 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), we conclude that it is legally sufficient to establish defendant's intent to kill. “The People presented evidence that defendant and the victim quarreled immediately before the shooting ..., and that defendant was only a few feet away from the victim when defendant pointed a gun at him and then fired that weapon” (Lopez, 96 A.D.3d at 1622, 946 N.Y.S.2d 780). Furthermore, viewing the evidence in light of the elements of the crimes 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), we conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We reject defendant's further contention that Supreme Court erred in failing sua sponte to order a competency hearing to determine whether defendant was fit to proceed at the time of sentencing (see People v. Tortorici, 92 N.Y.2d 757, 765–766, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80; People v. Morgan, 87 N.Y.2d 878, 879–880, 638 N.Y.S.2d 942, 662 N.E.2d 260; People v. Garrasi, 302 A.D.2d 981, 982–983, 754 N.Y.S.2d 799, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 4, 793 N.E.2d 418). The court “ ‘had the opportunity to interact with and observe defendant ..., [and thus] the court had adequate opportunity to properly assess defendant's competency’ ” (People v. Chicherchia, 86 A.D.3d 953, 954, 926 N.Y.S.2d 795, lv. denied 17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027; see People v. Cipollina, 94 A.D.3d 1549, 1550, 943 N.Y.S.2d 710, lv. denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764). “Moreover, [we] note[ ] that defense counsel did not request a hearing and, as it has been observed, [defense] counsel was in the best position to assess defendant's capacity” (Cipollina, 94 A.D.3d at 1549–1550, 943 N.Y.S.2d 710 [internal quotation marks omitted] ). “On the contrary, defense counsel ... made clear that defendant was competent” to proceed on the day of sentencing (Tortorici, 92 N.Y.2d at 767, 686 N.Y.S.2d 346, 709 N.E.2d 87).
We conclude that defendant's contention in his pro se supplemental brief that “he was denied a preliminary hearing is of no moment” (People v. Kirk, 96 A.D.3d 1354, 1358, 945 N.Y.S.2d 818, lv. denied 20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330). It is well established that “[t]here is no constitutional or statutory right to a preliminary hearing ..., nor is it a jurisdictional predicate to indictment” (id. [internal quotation marks omitted]; see People v. Caswell, 56 A.D.3d 1300, 1302, 867 N.Y.S.2d 638, lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442, reconsideration denied 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092). “[E]ven assuming, arguendo, that defendant was denied a preliminary hearing, we conclude that the failure to hold such a hearing does not require dismissal of the indictment or a new trial” (Kirk, 96 A.D.3d at 1358, 945 N.Y.S.2d 818; see People v. Bensching, 117 A.D.2d 971, 972, 499 N.Y.S.2d 522, lv. denied 67 N.Y.2d 939, 502 N.Y.S.2d 1031, 494 N.E.2d 116; see also People v. Russ, 292 A.D.2d 862, 862, 739 N.Y.S.2d 512, lv. denied 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562, reconsideration denied 99 N.Y.2d 539, 752 N.Y.S.2d 600, 782 N.E.2d 578). To the extent that the contentions in defendant's pro se supplemental brief involve matters outside the record on appeal, those contentions must be raised by way of a motion pursuant to CPL article 440 (see People v. Kreutter, 121 A.D.3d 1534, 1535, 994 N.Y.S.2d 752, lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970; People v. Brown, 120 A.D.3d 1545, 1546, 992 N.Y.S.2d 591, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346). Further, to the extent that we are able to review defendant's contention that he was denied effective assistance of counsel based on the record before us, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). We have considered the remaining contentions in defendant's pro se supplemental brief and conclude that they are without merit. Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.