| People v Cobb |
| 2010 NY Slip Op 03591 [72 AD3d 1565] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Charles S.Cobb, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedDecember 3, 2004. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, criminal possession of a weapon in the second degree and criminal possession ofa 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]), criminal possession of a weapon inthe second degree (§ 265.03 [former (2)]) and criminal possession of a weapon in the thirddegree (§ 265.02 [former (4)]). Defendant failed to preserve for our review his contentionthat the trial evidence is legally insufficient to establish that he intended to kill the victim"inasmuch as his motion to dismiss was not specifically directed at that alleged insufficiency"(People v Parsons, 30 AD3d1071, 1072 [2006], lv denied 7 NY3d 816 [2006]; see People v Gray, 86NY2d 10, 19 [1995]). In any event, that contention lacks merit. The "[i]ntent to kill may beinferred from defendant's conduct as well as the circumstances surrounding the crime" (People v Price, 35 AD3d 1230,1231 [2006], lv denied 8 NY3d 926 [2007]; see People v Massey, 61 AD3d 1433 [2009], lv denied 13NY3d 746 [2009]; People vGeddes, 49 AD3d 1255, 1256 [2008], lv denied 10 NY3d 863 [2008]). Theevidence, viewed in the light most favorable to the People (see People v Contes, 60NY2d 620, 621 [1983]), establishes that defendant pointed a gun at the victim from less than 20feet away, "aimed at a part of the victim's body where death producing injuries were apt tooccur," and fired twice (People vCaruso, 34 AD3d 863, 864 [2006], lv denied 8 NY3d 879 [2007]; see e.g. People v Diggs, 56 AD3d795 [2008], lv denied 12 NY3d 757 [2009]; People v German, 243 AD2d647 [1997], lv denied 91 NY2d 892 [1998]).
Defendant failed to preserve for our review his further contention that the evidence beforethe grand jury was legally insufficient to establish his intent to kill the victim (see People v Agee, 57 AD3d 1486[2008], lv denied 12 NY3d 813 [2009]) and, in any event, that contention "is notreviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficienttrial evidence" (CPL 210.30 [6]; seePeople v Baker, 67 AD3d 1446 [2009]; People v Dixon, 50 AD3d 1519 [2008], lv denied 10 NY3d958 [2008]). [*2]Viewing the evidence in light of the elements ofthe crimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Defendant contends that the admission in evidence of the tape recording of the 911 telephonecall constituted impermissible bolstering. That contention is not preserved for our review (seePeople v Castaneda, 192 AD2d 475 [1993]) and, in any event, it lacks merit (see People v Dann, 17 AD3d1152, 1153 [2005], lv denied 5 NY3d 761 [2005]; see generally People vBuie, 86 NY2d 501 [1995]). Contrary to the further contention of defendant, County Courtdid not abuse its discretion in denying his request to redact certain portions of the transcript ofthe 911 telephone call (see People v Knight, 280 AD2d 937, 939 [2001], lvdenied 96 NY2d 864 [2001]; People v Gandy, 152 AD2d 909 [1989], lvdenied 74 NY2d 896 [1989]). We reject the contention of defendant that the court alsoabused its discretion in denying his request to sequester the jury (see CPL 310.10),inasmuch as "the law presumes that the jury . . . follow[ed] the court's instructions"not to read, view or listen to any media coverage of the case (People v Moore, 71 NY2d684, 688 [1988]).
Defendant further contends that the court's instructions on the justification defense wereerroneous. After defendant raised his initial objections to those instructions, the court issuedcurative instructions to the jury, and defendant neither made any additional requests nor objectedto the curative instructions. "Under [those] circumstances, the curative instructions must bedeemed to have corrected the [alleged] error to the defendant's satisfaction" (People vHeide, 84 NY2d 943, 944 [1994]; see People v Young, 234 AD2d 922 [1996], lvdenied 89 NY2d 1017 [1997]), and defendant is deemed to have " 'waived appellate review'" of his present contention (People v Pivnick, 277 AD2d 1000, 1001 [2000], lvdenied 96 NY2d 786 [2001]). In any event, the court's instructions with respect to thejustification defense constituted "a correct statement of the law when viewed in [their] entirety. . . and adequately conveyed to the jury 'the correct principles of law to be appliedto the case' " (People v Bolling, 24AD3d 1195, 1197 [2005], affd 7 NY3d 874 [2006]; see People v Lluveres, 15 AD3d848, 849 [2005], lv denied 5 NY3d 807 [2005]; see generally People vGoetz, 68 NY2d 96 [1986]). Defendant contends for the first time on appeal that the courtfailed to instruct the jury with respect to the use of ordinary physical force, and he thereforefailed to preserve that contention for our review (see CPL 470.05 [2]; see e.g. People v Green, 43 AD3d1279, 1281 [2007], lv denied 9 NY3d 1034 [2008]; People v Bonner, 256AD2d 1219, 1220 [1998], lv denied 93 NY2d 871 [1999]). We decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
Defendant further contends that the court erred in denying his request for a jury instructionon temporary and lawful possession of a weapon (see CJI2d[NY] Possession: Temporaryand Lawful Possession). We reject that contention. There was no reasonable view of theevidence "tending to establish that, once possession [was] obtained, the weapon [was] not. . . used in a dangerous manner" (People v Williams, 50 NY2d 1043, 1045[1980]; see People v Hayes, 51AD3d 688 [2008], lv denied 11 NY3d 737 [2008]; People v Matos, 224AD2d 326 [1996], lv denied 88 NY2d 850 [1996]).
Although defendant contends that the court erred in denying his request for a substitution ofassigned counsel, that contention is not properly before us inasmuch as the record establishesthat defendant abandoned that request (see People v Clark, 24 AD3d 1225 [2005], lv denied 6NY3d 832 [2006]; People v Hobart, 286 AD2d 916 [2001], lv denied 97 NY2d683 [2001]). Defendant further contends that he was denied effective assistance of counsel. Tothe extent that defendant's contention is based on defense counsel's alleged failure to conduct aninvestigation or to pursue the justification defense, it involves matters outside the record onappeal and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Griffin, 48 AD3d1233, 1236 [2008], lv denied 10 NY3d 840 [2008]). We otherwise [*3]conclude that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]). Finally, the sentence is notunduly harsh or severe. Present—Martoche, J.P., Centra, Fahey, Peradotto and Pine, JJ.