| People v Carr |
| 2009 NY Slip Op 00755 [59 AD3d 945] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Eric D. Carr,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered May 21, 2007. The judgment convicted defendant, upon a jury verdict, of attemptedmurder in the second degree, criminal possession of a weapon in the second degree, criminalpossession of a weapon in the third degree and criminal possession of a weapon in the fourthdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, interalia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]).Contrary to defendant's contention, the evidence is legally sufficient to establish the element ofintent with respect to the attempted murder count (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The surveillance video from a store establishes that defendant and thecodefendant, his father, chased the victim through the store and that defendant shot the victim.The video further establishes that, after the victim ran from the store, defendant reloaded his gunand he, the codefendant and another man left the store. A security guard at a nearby apartmentcomplex testified that the injured victim was lying on the ground when defendant again shot thevictim. Viewing the evidence in light of the elements of the crime of attempted murder ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respect to thatcrime is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).The contention of defendant that his actions were justified because he was attempting to defendthe codefendant is belied by the record.
Defendant failed to object to Supreme Court's charge on the defense of justification andtherefore failed to preserve for our review his contention that the court erred in failing to instructthe jury with respect to attempted murder that a person may be justified in using deadly physicalforce in defense of a third person (seePeople v Bolling, 49 AD3d 1330, 1332 [2008]; see generally People vRobinson, 88 NY2d 1001 [1996]). In any event, the alleged error is harmless. The evidenceof defendant's guilt is overwhelming, and there is no significant probability that defendant wouldhave been acquitted had it not been for the alleged error (see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]).[*2]
Defendant further contends that the court abused itsdiscretion in denying his request for a missing witness charge with respect to three individualswho were present in the store before defendant arrived there. Defendant requested the chargeafter the People rested, although the witness list provided to defendant before thecommencement of the trial did not indicate that the People intended to call those individuals aswitnesses. We therefore conclude that the court properly determined that defendant's request forthe missing witness charge was not made "as soon as practicable" (People v Gonzalez,68 NY2d 424, 428 [1986]). In any event, we conclude that the court did not abuse its discretionin further determining that the People met their burden of establishing that the testimony of thoseindividuals would be cumulative to the testimony of the victim, the codefendant and thesurveillance video (see People vSweney, 55 AD3d 1350 [2008]; see generally Gonzalez, 68 NY2d at 427-428).
Defendant failed to preserve for our review his contention that he was deprived of a fair trialby prosecutorial misconduct on summation (see People v Smith, 32 AD3d 1291, 1292 [2006], lv denied8 NY3d 849 [2007]). In any event, although we agree with defendant that certain remarks bythe prosecutor were improper inasmuch as they "play[ed] on the sympathies and fears of thejury," we nevertheless conclude that the misconduct was not so egregious as to deprivedefendant of a fair trial (People vOrtiz-Castro, 12 AD3d 1071 [2004], lv denied 4 NY3d 766 [2005]). Finally, thesentence is not unduly harsh or severe. Present—Smith, J.P., Centra, Peradotto andGorski, JJ.