| People v Cooley |
| 2008 NY Slip Op 03819 [50 AD3d 1548] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Antonio D.Cooley, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Brunetti, A.J.),rendered February 16, 2005. The judgment convicted defendant, upon a jury verdict, of attemptedmurder in the second degree and assault in the first degree (two counts).
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, ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and twocounts of assault in the first degree (§ 120.10 [1]), arising from an incident in whichdefendant cut the throat of a woman and then attacked her 13-year-old daughter. By making onlya general motion for a trial order of dismissal, defendant failed to preserve for our review hiscontention that the attempted murder conviction is not supported by legally sufficient evidence(see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention is withoutmerit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The attemptedmurder victim testified that, without provocation, defendant entered her home and cut her throat,and the medical records of that victim established that she sustained multiple stab wounds to theneck, one of which had penetrated her airway. We thus conclude that the evidence, viewed in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), islegally sufficient to establish that defendant intended to kill that victim and "came dangerouslyclose to doing so" (People vJackson, 11 AD3d 369, 370 [2004], lv denied 3 NY3d 757 [2004]; seePeople v Moradel, 278 AD2d 250 [2000], lv denied 99 NY2d 538 [2002]; Peoplev McDavis, 97 AD2d 302, 303 [1983]).
Contrary to defendant's further contention, the verdict with respect to the count ofattempted murder is not against the weight of the evidence (see generally People v Danielson, 9 NY3d 342, 348-349 [2007];Bleakley, 69 NY2d at 495). Although a different verdict would not have beenunreasonable, the jury was entitled to credit the testimony of the victims (see generallyBleakley, 69 NY2d at 495). Although we agree with defendant that the prosecutor madeimproper comments during summation, we conclude that Supreme Court's curative instructionswere sufficient to alleviate any prejudice to defendant (see People v Murry, 24 AD3d 1319, 1320 [2005], lv denied6 NY3d 815 [2006]). We reject the further contention of defendant that the court erred inadmitting in evidence statements that he allegedly made to the 13-year-old victim several months[*2]prior to his commission of the crimes herein, expressing hisdesire to have sexual intercourse with her. Those statements were relevant to the issue ofdefendant's intent, and their probative value exceeded their potential for prejudice (seegenerally People v Alvino, 71 NY2d 233, 242 [1987]). Finally, the sentence is not undulyharsh or severe. Present—Martoche, J.P., Centra, Lunn, Peradotto and Green, JJ.