People v. Smith — 90 A.D.3d 1565

Majority

p. 1565

The People of the State of New York, Respondent, v Christopher L. Smith, Appellant.

[935 NYS2d 775]

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]), assault in the first degree (§ 120.10 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [3]). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence (see People v Hines, 97 NY2d 56 , 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, that contention is without merit (see People v Green, 74 AD3d 1899 , 1900 [2010], lv denied 15 NY3d 852 [2010]; People v Flecha, 43 AD3d 1385 [2007], lv denied 9 NY3d 990 [2007]; see generally People v Bleakley, 69 NY2d 490 , 495 [1987]).

p. 1566

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342 , 349 [2007]), we also conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495 ). Although “an acquittal would not have been unreasonable” in light of defendant’s testimony (Danielson, 9 NY3d at 348 ), it cannot be said that the jury failed to give the evidence the weight it should be accorded in concluding that defendant possessed the requisite intent for the commission of the crimes (see People v Simcoe, 75 AD3d 1107 , 1108-1109 [2010], lv denied 15 NY3d 924 [2010]). The jury “ £see[s] and hearts] the witnesses [and thus] can assess their credibility and reliability in a manner that is far superior to that of [this Court, which] must rely on the printed record’ ” (People v Horton, 79 AD3d 1614 , 1615 [2010], lv denied 16 NY3d 859 [2011], quoting People v Lane, 7 NY3d 888 , 890 [2006]), and we perceive no reason to disturb the jury’s credibility determinations.

We reject the further contention of defendant that County Court erred in denying his request for a circumstantial evidence charge. “A circumstantial evidence charge is required [only] where the evidence against a defendant is ‘wholly circumstantial’ ” (People v Guidice, 83 NY2d 630 , 636 [1994], quoting People v Silva, 69 NY2d 858 , 859 [1987]; see People v Daddona, 81 NY2d 990 , 992 [1993]). Here, however, “[t]he evidence presented at trial . . . consisted of both circumstantial and direct evidence, and thus a circumstantial evidence charge was not required” (People v Whitfield, 72 AD3d 1610 [2010], lv denied 15 NY3d 811 [2010]; see e.g. People v Allen, 1 AD3d 947 [2003], lv denied 1 NY3d 594 [2004]; People v Goncalves, 283 AD2d 1005 [2001], lv denied 96 NY2d 918 [2001]).

By failing to object to the court’s ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in allowing the prosecutor to question defendant concerning the underlying facts of a youthful offender adjudication (see People v Goodrum, 72 AD3d 1639 [2010], lv denied 15 NY3d 773 [2010]). In any event, defendant’s contention is without merit. Although it is “impermissible to use a youthful offender . . . adjudication as an impeachment weapon, because ‘[those] adjudications are not convictions of a crime’ . . . , the [prosecutor] may bring out ‘the illegal or immoral acts underlying such adjudications’ ” (People v Gray, 84 NY2d 709 , 712 [1995]; see People v Smikle, 82 AD3d 1697 [2011], lv denied 17 NY3d 801 [2011]).

Contrary to defendant’s further contention, the sentences imposed for attempted murder and assault are not unduly harsh

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or severe, particularly in view of the serious nature of the offenses and the lack of remorse displayed by defendant. In addition, “[t]he fact that defendant’s sentence was greater than that of his codefendant[, who accepted a plea agreement,] does not substantiate his [contention] that he was improperly punished for going to trial” (People v Elwood, 80 AD3d 988 , 990 [2011], lv denied 16 NY3d 858 [2011]).

Defendant failed to preserve for our review the contention in his pro se supplemental brief that he was deprived of a fair trial by prosecutorial misconduct during summation inasmuch as he did not object to the alleged improprieties (see People v Roman, 85 AD3d 1630 , 1631-1632 [2011], lv denied 17 NY3d 821 [2011]). Defendant likewise failed to preserve for our review the contention in his pro se supplemental brief that the consciousness of guilt based on flight charge was improper (see generally Whitfield, 72 AD3d 1610 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We have reviewed the remaining contention of defendant in his pro se supplemental brief and conclude that it is without merit. Present — Smith, J.E, Fahey, Garni, Sconiers and Gorski, JJ.

Cases cited

People v. Hines 97 NY2d 56 N.Y. 2001-10-23 at 61 p. 1565
People v. Green 74 AD3d 1899 N.Y. App. Div. 2010-06-18 at 1900 p. 1565
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 1565
People v. Danielson 9 NY3d 342 N.Y. 2007-12-13 at 349 p. 1566
People v. Horton 79 AD3d 1614 N.Y. App. Div. 2010-12-30 at 1615 p. 1566
People v. Lane 7 NY3d 888 N.Y. 2006-11-21 at 890 p. 1566
People v. Guidice 83 NY2d 630 N.Y. 1994-05-12 at 636 p. 1566
People v. Silva 69 NY2d 858 N.Y. 1987-03-24 at 859 p. 1566
People v. Whitfield 72 AD3d 1610 N.Y. App. Div. 2010-04-30 p. 1566, p. 1567
People v. Moore 15 NY3d 811 N.Y. 2010-09-02 p. 1566
People v. Goncalves 283 AD2d 1005 N.Y. App. Div. 2001-05-02 p. 1566
People v. Goodrum 72 AD3d 1639 N.Y. App. Div. 2010-04-30 p. 1566
People v. Gray 84 NY2d 709 N.Y. 1995-01-10 at 712 p. 1566
People v. Smikle 82 AD3d 1697 N.Y. App. Div. 2011-03-25 p. 1566
People v. Elwood 80 AD3d 988 N.Y. App. Div. 2011-01-20 at 990 p. 1567
People v. Roman 85 AD3d 1630 N.Y. App. Div. 2011-06-10 at 1631-1632 p. 1567