| People v Henderson |
| 2010 NY Slip Op 08163 [78 AD3d 1506] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael J.Henderson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered October10, 2006. The judgment convicted defendant, upon a jury verdict, of assault in the second degree,murder in the second degree, assault in the first degree (two counts) and attempted murder in thesecond 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 of, inter alia,attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and murder inthe second degree (§ 125.25 [2]). We reject defendant's contention that the evidence is legallyinsufficient to support the conviction of two counts of assault in the first degree (§ 120.10 [3])and one count each of attempted murder and murder (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Contrary to the contention of defendant, the jury's finding that he intended tomurder one victim when he drove a vehicle into a crowd did not preclude a finding that he acted withdepraved indifference with respect to the three other victims, "regardless of whether the evidence wouldhave also supported a transferred intent theory" (People v Hamilton, 52 AD3d 227, 228 [2008], lv denied 11NY3d 737 [2008]; see People vDouglas, 73 AD3d 30, 33-34 [2010]). "Where, as here, more than one potential victim waspresent at the [scene of the crimes], a defendant may be convicted of both [intentional and depravedindifference crimes] because he or she may have possessed different states of mind with regard todifferent potential victims" (People vPage, 63 AD3d 506, 507-508 [2009], lv denied 13 NY3d 837 [2009]; seeDouglas, 73 AD3d at 33-34). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we accord great deference to the jury's resolution ofcredibility issues and conclude that the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his further contention that the verdict is repugnant byfailing to object to the verdict on that ground before the jury was discharged (see People vAlfaro, 66 NY2d 985, 987 [1985]; People v Louder, 74 AD3d 1845 [2010]). In any event, that contentionis without merit, and we therefore reject the contention of defendant that he was denied effectiveassistance of counsel based on defense counsel's failure to object to the verdict [*2]on the ground that it was repugnant (see People v Bassett, 55 AD3d 1434, 1438 [2008], lv denied11 NY3d 922 [2009]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.