Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. Ronald L. VROOMAN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Ronald L. Vrooman, Defendant–Appellant Pro Se.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Ronald L. Vrooman, Defendant–Appellant Pro Se.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ). Defendant's contention that the prosecutor erred in eliciting testimony with respect to defendant's invocation of the right to counsel is not preserved for our review ( seeCPL 470.05[2]; see also People v. Kithcart, 85 A.D.3d 1558, 1559–1560, 925 N.Y.S.2d 280,lv. denied17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98). In any event, we conclude that any error with respect thereto is “harmless beyond a reasonable doubt inasmuch as there is no reasonable possibility that the error[ ] might have contributed to defendant's conviction” ( People v. Capers, 94 A.D.3d 1475, 1476, 942 N.Y.S.2d 731,lv. denied19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 [internal quotation marks omitted]; see Kithcart, 85 A.D.3d at 1559–1560, 925 N.Y.S.2d 280;see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787). Defendant was not denied effective assistance of counsel by defense counsel's failure to object to that testimony ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;People v. Williams, 107 A.D.3d 1516, 1517, 966 N.Y.S.2d 784,lv. denied21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860) and, viewing the evidence, the law and the circumstances of the case, in totality and at the time of the representation, we conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
In his pro se supplemental brief, defendant contends that the conviction is not based on legally sufficient evidence. We reject that contention. Here, the evidence adduced at trial establishes that the victim was brutally beaten and had a petechial injury in her eye commonly associated with asphyxiation; that the victim was left to die after the beating; that defendant's DNA was found on the victim; that defendant's fingerprint was found on a cup located approximately 30 inches from the victim's body; and that defendant admitted to the People's final witness his role in the “killing” of a person who matched some of the victim's characteristics and who was killed at approximately the same time as the victim. Defendant challenges the legal sufficiency of the evidence on the specific grounds that the People failed to establish his identity as the victim's killer and his intent to kill the victim. Defendant's challenge to the legal sufficiency of the evidence with respect to intent is unpreserved for our review ( see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;People v. Scott, 61 A.D.3d 1348, 1349, 877 N.Y.S.2d 536,lv. denied12 N.Y.3d 920, 884 N.Y.S.2d 701, 912 N.E.2d 1082,reconsideration denied13 N.Y.3d 799, 887 N.Y.S.2d 549, 916 N.E.2d 444). In any event, in light of the above evidence, we conclude that both of defendant's challenges to the legal sufficiency of the evidence lack merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant contends that the verdict is against the weight of the evidence because the testimony of the People's final witness was incredible. We reject that contention. “ ‘[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury’ ” ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922), and we see no reason to disturb the jury's resolution of those issues in this case. Defendant also contends that the verdict is against the weight of the evidence with respect to the issues of intent and identification, arguing specifically that the evidence establishes only that he had sexual contact with the victim on the night she was killed, and not that he killed her. Viewing the evidence in light of the elements of the crime 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 generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We note in particular that “intent [to kill] ‘may be inferred from defendant's conduct as well as the circumstances surrounding the crime’ ” ( People v. Massey, 61 A.D.3d 1433, 1433, 877 N.Y.S.2d 589,lv. denied13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018;see generally People v. Geddes, 49 A.D.3d 1255, 1256, 856 N.Y.S.2d 336,lv. denied10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252).
Finally, defendant contends in his pro se supplemental brief that County Court erred in failing to submit the lesser included offense of “manslaughter” to the jury. “Defendant did not ask the court to so charge and therefore failed to preserve his contention[ ] for our review” ( People v. Gibbs, 286 A.D.2d 865, 867, 731 N.Y.S.2d 102,lv. denied97 N.Y.2d 704, 739 N.Y.S.2d 105, 765 N.E.2d 308;see People v. Taylor, 83 A.D.3d 1505, 1506, 921 N.Y.S.2d 455,lv. denied17 N.Y.3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.