| People v Payne |
| 2009 NY Slip Op 09917 [68 AD3d 1800] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Basil Payne,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, J.), renderedJune 19, 2008. The judgment convicted defendant, upon a jury verdict, of attempted murder inthe first degree and criminal possession of a weapon in the second degree.
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 first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]; [b])and criminal possession of a weapon in the second degree (§ 265.03 [former (2)]).Defendant failed to preserve for our review his contention that Supreme Court failed to conductan adequate inquiry concerning the issue whether certain jurors were grossly unqualified to serve(see People v Fortino, 61 AD3d1410 [2009], lv denied 12 NY3d 925 [2009]; People v Clark, 28 AD3d 1190 [2006]), and we decline to exerciseour power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Contrary to the further contention of defendant, defense counsel wasnot ineffective in failing to preserve that contention with respect to the jurors for our review.Defendant failed to demonstrate the absence of strategic or other legitimate explanations for thealleged omission by defense counsel (see generally People v Benevento, 91 NY2d 708,712 [1998]).
We reject the contention of defendant that the evidence is legally insufficient to establish hisintent to kill the police officer and to use a weapon against that officer (see generally Peoplev Bleakley, 69 NY2d 490, 495 [1987]). In addition, viewing the evidence in light of theelements of the crimes as charged to the jury (People v Danielson, 9 NY3d 342, 349 [2007]), we conclude thatthe verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at495), and the sentence is not unduly harsh or severe. We have considered defendant's remainingcontention and conclude that it is without merit. Present—Scudder, P.J., Hurlbutt, Smithand Centra, JJ.