| People v Massey |
| 2009 NY Slip Op 03343 [61 AD3d 1433] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelMassey, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered December 7, 2007. The judgment convicted defendant, upon a jury verdict, of murderin the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the third degree (§ 265.02 [1]). We reject the contention of defendant that theevidence is legally insufficient to disprove his justification defense (see generally People v Danielson, 9NY3d 342, 349 [2007]). Although in his statement to the police defendant asserted that thevictim brandished a knife during the altercation and thus may have died from self-inflictedwounds, three eyewitnesses testified to the contrary. We thus conclude with respect to legalsufficiency that the People met their burden of disproving defendant's justification defensebeyond a reasonable doubt, i.e., they presented legally sufficient evidence establishing that thevictim did not brandish the knife during the altercation and that defendant's use of deadly forcewas not justified (see Penal Law § 25.00 [1]; see generally Danielson, 9NY3d at 349). We further conclude that the jury "did not fail to give the evidence the weight itshould be accorded in rejecting defendant's justification defense" and thus that the verdict is notagainst the weight of the evidence in that respect (People v Wolf, 16 AD3d 1167 [2005]; see generally People vBleakley, 69 NY2d 490, 495 [1987]). " '[R]esolution of issues of credibility, as well as theweight to be accorded to the evidence presented, are primarily questions to be determined by thejury, which saw and heard the witnesses' " (People v Sorrentino, 12 AD3d 1197, 1197-1198 [2004], lvdenied 4 NY3d 748 [2004]).
Contrary to the further contention of defendant, the evidence is legally sufficient to establishhis intent to kill the victim. Such intent "may be inferred from defendant's conduct as well as thecircumstances surrounding the crime" (People v Price, 35 AD3d 1230, 1231 [2006], lv denied 8NY3d 926 [2007]). Here, "[d]efendant's homicidal intent could be inferred from evidence thatdefendant plunged a [*2]knife deep into the victim's chest, in thedirection and close vicinity of vital organs" (People v Dones, 279 AD2d 366, 366[2001], lv denied 96 NY2d 799 [2001]). In addition, viewing the evidence in light of theelements of the crime of murder as charged to the jury (see Danielson, 9 NY3d at 349),we conclude that the verdict with respect to the element of intent is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Contrary to defendant's furthercontention, Supreme Court properly admitted in evidence the victim's identification of defendantand the statement of the victim that he had been stabbed under the excited utterance exception tothe hearsay rule (see People vJohnson, 1 NY3d 302, 306 [2003]; People v Cotto, 92 NY2d 68, 78-79 [1998]).In any event, the identification and statement were admissible hearsay under the present senseimpression exception (see People v Brown, 80 NY2d 729, 732 [1993]). Defendant failedto preserve for our review his contention that the court's ultimate Sandoval rulingconstitutes an abuse of discretion (seePeople v Robles, 38 AD3d 1294, 1295 [2007], lv denied 8 NY3d 990 [2007]),and in any event that contention is without merit (see generally People v Williams, 56NY2d 236, 238-239 [1982]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Martoche, Fahey, Peradotto and Green, JJ.