Summary
observing that § 125.25 has an "element of ‘intent to cause the death of another’ " and that § 125.25 has "the element of causing the death of another during an ‘attempt to commit robbery’ "
Summary of this case from United States v. SanchezOpinion
1009 KA 14-01897.
10-06-2017
The PEOPLE of the State of New York, Respondent, v. Michael WILLIAMS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of Counsel), for Defendant–Appellant.Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of murder in the second degree ( Penal Law § 125.25[1], [3] ). Defendant's claims that the prosecutor improperly vouched for the credibility of four prosecution witnesses during summation are not preserved for our review because he failed to object to the allegedly improper comments (see People v. Williams, 46 N.Y.2d 1070, 1071, 416 N.Y.S.2d 792, 390 N.E.2d 299 ). We decline to exercise our power to review those claims as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Viewing the evidence in light of the elements of murder in the second degree under Penal Law § 125.25(1) and (3) 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 People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's contention that the verdict is against the weight of the evidence with respect to the element of "intent to cause the death of another" ( § 125.25[1] ), "[t]he testimony established that ... defendant shot one of [the] victims in the back at close range when that victim tried to flee in an attempt to thwart ... defendant's robbery attempt" and, thus, "[t]he jury was justified in inferring, based on these facts, an intent on the part of ... defendant to kill" ( People v. Woods, 126 A.D.2d 766, 767, 511 N.Y.S.2d 344, lv. denied 69 N.Y.2d 888, 515 N.Y.S.2d 1037, 507 N.E.2d 1107, reconsideration denied 70 N.Y.2d 659, 518 N.Y.S.2d 1053, 512 N.E.2d 579 ). With respect to the element of causing the death of another during an "attempt[ ] to commit robbery" ( § 125.25[3] ), the prosecution presented testimony that, during the fatal encounter, defendant's accomplice displayed a gun to the murder victim and stated, "Give it up," with reference to the victim's marihuana, and that defendant later admitted that he was "going to rob somebody" and things "didn't go like [they were] supposed to, [and] he shot a Hispanic dude." That testimony is not incredible as a matter of law and we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Baker, 30 A.D.3d 1102, 1102–1103, 817 N.Y.S.2d 793, lv. denied 7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.