| People v Hunter |
| 2010 NY Slip Op 01180 [70 AD3d 1388] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DamonHunter, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered November 3, 2006. The judgment convicted defendant, upon a jury verdict, of robberyin the first degree and burglary in the first 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 ofrobbery in the first degree (Penal Law § 160.15 [3]) and burglary in the first degree(§ 140.30 [3]). Defendant failed to preserve for our review his contention that the evidenceis legally insufficient to support the conviction because his intoxication precluded him fromforming the requisite intent to commit the crimes (see People v Lamica, 53 AD3d 1109 [2008], lv denied 11NY3d 833 [2008]; see generally People v Gray, 86 NY2d 10, 19 [1995]). In any event,his contention is without merit. Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that a rational trier of factcould infer that defendant had the requisite intent to commit the crimes of which he wasconvicted (see People v Pross, 302 AD2d 895, 897-898 [2003], lv denied 99NY2d 657 [2003]; see generally Peoplev Tedesco, 30 AD3d 1075, 1076 [2006], lv denied 7 NY3d 818 [2006]; People v Mahoney, 6 AD3d 1104[2004], lv denied 3 NY3d 660 [2004]). We further note the well-settled principle that "'[a]n intoxicated person can form the requisite criminal intent to commit a crime, and it is for thetrier of fact to decide if the extent of the intoxication acted to negate the element of intent' " (People v Felice, 45 AD3d 1442,1443 [2007], lv denied 10 NY3d 764 [2008]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject thefurther contention of defendant that the verdict is against the weight of the evidence (see People v Johnson, 43 AD3d1422 [2007], lv denied 9 NY3d 1035 [2008]; see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Also contrary to the contention of defendant, he received effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel's failure tomake a motion for a trial order of dismissal on the ground raised on appeal does not constituteineffective assistance of counsel because that motion would have had no chance of success (see People v Stultz, 2 NY3d 277,287 [2004], [*2]rearg denied 3 NY3d 702 [2004]; People v Lewis, 67 AD3d 1396[2009]). Defense counsel also was not ineffective for failing to retain an expert on the issue ofdefendant's intoxication. " 'Defendant has not demonstrated that such testimony was available,that it would have assisted the jury in its determination or that he was prejudiced by its absence' "(People v Jurgensen, 288 AD2d 937, 938 [2001], lv denied 97 NY2d 684[2001]). Present—Scudder, P.J., Centra, Carni and Pine, JJ.