| People v Smith |
| 2011 NY Slip Op 09462 [90 AD3d 1565] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Christopher L.Smith, Appellant. |
—[*1] Christopher L. Smith, defendant-appellant pro se. 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.), renderedNovember 19, 2007. The judgment convicted defendant, upon a jury verdict, of attemptedmurder in the second degree, assault in the first degree and criminal possession of a weapon inthe 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 second degree (Penal Law §§ 110.00, 125.25 [1]), assault inthe first degree (§ 120.10 [1]) and criminal possession of a weapon in the second degree(§ 265.03 [3]). Defendant failed to preserve for our review his challenge to the legalsufficiency of the evidence inasmuch as he failed to renew his motion for a trial order ofdismissal after presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]). In any event, that contention is without merit (see People v Green, 74 AD3d1899, 1900 [2010], lv denied 15 NY3d 852 [2010]; People v Flecha, 43 AD3d 1385[2007], lv denied 9 NY3d 990 [2007]; see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we also conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Although "an acquittal would not have beenunreasonable" in light of defendant's testimony (Danielson, 9 NY3d at 348), it cannot besaid that the jury failed to give the evidence the weight it should be accorded in concluding thatdefendant possessed the requisite intent for the commission of the crimes (see People v Simcoe, 75 AD3d1107, 1108-1109 [2010], lv denied 15 NY3d 924 [2010]). The jury "'see[s] and hear[s] the witnesses[and thus] can assess their credibility and reliability in a mannerthat is far superior to that of [this Court, which] must rely on the printed record' " (People v Horton, 79 AD3d 1614,1615 [2010], lv denied 16 NY3d 859 [2011], quoting People v Lane, 7 NY3d 888, 890 [2006]), and we perceive noreason to disturb the jury's credibility determinations.[*2]
We reject the further contention of defendant that CountyCourt erred in denying his request for a circumstantial evidence charge. "A circumstantialevidence charge is required [only] where the evidence against a defendant is 'whollycircumstantial' " (People v Guidice, 83 NY2d 630, 636 [1994], quoting People vSilva, 69 NY2d 858, 859 [1987]; see People v Daddona, 81 NY2d 990, 992 [1993]).Here, however, "[t]he evidence presented at trial . . . consisted of bothcircumstantial and direct evidence, and thus a circumstantial evidence charge was not required"(People v Whitfield, 72 AD3d1610 [2010], lv denied 15 NY3d 811 [2010]; see e.g. People v Allen, 1 AD3d 947 [2003], lv denied 1NY3d 594 [2004]; People v Goncalves, 283 AD2d 1005 [2001], lv denied 96NY2d 918 [2001]).
By failing to object to the court's ultimate Sandoval ruling, defendant failed topreserve for our review his contention that the court abused its discretion in allowing theprosecutor to question defendant concerning the underlying facts of a youthful offenderadjudication (see People vGoodrum, 72 AD3d 1639 [2010], lv denied 15 NY3d 773 [2010]). In any event,defendant's contention is without merit. Although it is "impermissible to use a youthful offender. . . adjudication as an impeachment weapon, because '[those] adjudications are notconvictions of a crime' . . . , the [prosecutor] may bring out 'the illegal or immoralacts underlying such adjudications' " (People v Gray, 84 NY2d 709, 712 [1995]; see People v Smikle, 82 AD3d1697 [2011], lv denied 17 NY3d 801 [2011]).
Contrary to defendant's further contention, the sentences imposed for attempted murder andassault are not unduly harsh or severe, particularly in view of the serious nature of the offensesand the lack of remorse displayed by defendant. In addition, "[t]he fact that defendant's sentencewas greater than that of his codefendant[, who accepted a plea agreement,] does not substantiatehis [contention] that he was improperly punished for going to trial" (People v Elwood, 80 AD3d 988,990 [2011], lv denied 16 NY3d 858 [2011]).
Defendant failed to preserve for our review the contention in his pro se supplemental briefthat he was deprived of a fair trial by prosecutorial misconduct during summation inasmuch as hedid not object to the alleged improprieties (see People v Roman, 85 AD3d 1630, 1631-1632 [2011], lvdenied 17 NY3d 821 [2011]). Defendant likewise failed to preserve for our review thecontention in his pro se supplemental brief that the consciousness of guilt based on flight chargewas improper (see generally Whitfield, 72 AD3d 1610). We decline to exercise ourpower to review those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). We have reviewed the remaining contention of defendant in his pro sesupplemental brief and conclude that it is without merit. Present—Smith, J.P., Fahey,Carni, Sconiers and Gorski, JJ.