| People v Blue |
| 2008 NY Slip Op 07789 [55 AD3d 391] |
| October 16, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ScottBlue, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bernard J. Fried, J.), rendered May 22, 2003,convicting defendant, after a jury trial, of attempted murder in the second degree, robbery in thefirst degree (five counts), attempted robbery in the first degree (four counts) and criminalpossession of a weapon in the second degree, and sentencing him, as a persistent violent felonyoffender, to an aggregate term of 50 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). In this regard,defendant only challenges his attempted murder conviction. The element of intent to kill wasestablished by evidence that, after attempting to rob one of his victims, defendant fired two shotsat the victim, striking him in the groin and thigh (see e.g. People v Cabassa, 79NY2d 722, 728 [1992], cert denied sub nom. Lind v New York, 506 US 1011 [1992]).The location of the wounds does not establish the direction of defendant's aim,and thus does not imply that defendant sought to avoid striking the victim in the head or upperbody (see People v Butler, 86 AD2d 811, 815 [1982, Sandler, J., dissenting], revd ondissenting mem 57 NY2d 664 [1982]). The jury had ample basis on which to discredit thatportion of defendant's statement to the police that he now cites as undermining a finding ofhomicidal intent. Finally, although the two shots sufficiently established homicidal intent, wealso note that very shortly after firing these shots defendant further manifested that intent byrepeatedly squeezing the trigger of his weapon in an unsuccessful effort to fire additional shots.There is no merit to any of defendant's procedural arguments for disregarding this additionalevidence.
The court properly exercised its discretion in admitting photographs of the victim's woundswhich were not gruesome. The photographs were relevant to homicidal intent and seriousphysical injury, which were elements of charges submitted to the jury (see People vWood, 79 NY2d 958, 960 [1992]; People v Alvarez, 3 AD3d 456, 457 [2004], lvdenied 2 NY3d 761 [2004]), and the People "were not bound to stop after presentingminimum evidence" (People v Alvino, 71 NY2d 233, 245 [1987]). While a limitinginstruction may have been appropriate, defendant declined the court's offer to deliver one.[*2]
The court properly directed that defendant's sentence forattempted murder run consecutively to his sentence for attempted robbery, arising out of the sameincident. The evidence established that defendant committed the crime of attempted robbery andthen attempted to kill the victim. Indeed, defendant left the scene of the attempted robbery,returned moments later and shot the victim. Accordingly, the two crimes were separate anddistinct acts (see People v Salcedo, 92 NY2d 1019 [1998]; People v Lewis, 268AD2d 249 [2000], lv denied 95 NY2d 799 [2000]).
Defendant's constitutional challenge to the procedure under which he was sentenced as apersistent violent felony offender is unpreserved and we decline to review it in the interest ofjustice. As an alternative holding, we also reject it on the merits (see Almendarez-Torres vUnited States, 523 US 224 [1998]). Concur—Saxe, J.P., Catterson, McGuire, Acostaand DeGrasse, JJ.