| People v Badger |
| 2011 NY Slip Op 09423 [90 AD3d 1531] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Cyon Badger,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedFebruary 20, 2008. The judgment convicted defendant, upon a nonjury verdict, of murder in thesecond degree and attempted murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of murderin the second degree (Penal Law § 125.25 [1]) and attempted murder in the second degree(§§ 110.00, 125.25 [1]), defendant contends that the verdict is against the weight ofthe evidence. Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Addressing first the crime of attempted murder in the second degree, we note that such crime"is committed when, with the intent to cause the death of another person, one engages in conductwhich tends to effect commission of that crime . . . Where those elements converge,an attempted murder has occurred, regardless of whether the defendant has killed or even injuredhis or her intended target" (People v Fernandez, 88 NY2d 777, 783 [1996]; see§§ 110.00, 125.25 [1];People v Molina, 79 AD3d 1371, 1375 [2010], lv denied 16 NY3d 861 [2011]).It is well established that "[i]ntent to kill 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]; see People vGeddes, 49 AD3d 1255, 1256 [2008], lv denied 10 NY3d 863 [2008]). Here, thetrial testimony and defendant's post-arrest statement to the police established that, after a physicalaltercation with a bouncer at a restaurant, defendant retrieved a shotgun from his apartment,loaded the shotgun, and approached the bouncer outside the restaurant with the shotgun drawnand pointed at the bouncer. Although defendant asserted in his statement that he intended only toinjure but not to kill the bouncer, several eyewitnesses testified that defendant approached thebouncer with the shotgun trained on the bouncer, that he cocked the shotgun while standingdirectly in front of the bouncer, and that he attempted to fire the shotgun at close range. Theshotgun misfired, however, and a shell struck a bystander in the arm. The bouncer fled inside therestaurant.[*2]
With respect to the crime of murder in the second degreeof which defendant was convicted, "[a]lthough a finding that defendant did not intend to kill thevictim[ ] would not have been unreasonable . . . , it cannot be said that CountyCourt, which saw and heard the witnesses and thus was able to assess their credibility andreliability in a manner that is far superior to that of reviewing judges who must rely on theprinted record, failed to give the evidence the weight it should be accorded" (People v Simcoe, 75 AD3d 1107,1108 [2010], lv denied 15 NY3d 924 [2010] [internal quotation marks omitted]; seegenerally Molina, 79 AD3d at 1375-1376; People v Wallace, 8 AD3d 753, 755-756 [2004], lv denied3 NY3d 682 [2004]). The trial testimony established that after the bouncer fled, defendant"turned and shot at the first person that he saw." Specifically, the record reflects that, after thebouncer had retreated into the restaurant, defendant again cocked the shotgun, turned to his left,pointed the shotgun at a bystander and shot him at relatively close range, striking him in thetorso. Then, according to one witness, defendant spun around and yelled, "[a]nybody else want toget shot?"
Finally, contrary to defendant's further contention, we conclude that the sentence is notunduly harsh or severe in light of the circumstances of the crimes and defendant's criminalhistory, which includes several violent offenses. Present—Smith, J.P., Peradotto, Lindley,Green and Martoche, JJ.