| People v Pearson |
| 2012 NY Slip Op 02235 [93 AD3d 1343] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JeffreyPearson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered June22, 2010. The judgment convicted defendant, upon a nonjury verdict, of attempted murder in thesecond degree, aggravated criminal contempt and aggravated harassment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]),aggravated criminal contempt (§ 215.52 [1]) and aggravated harassment in the seconddegree (§ 240.30 [1]). Defendant failed to preserve for our review his contention that theevidence is legally insufficient to establish his intent to kill the victim inasmuch as he failed torenew his motion for a trial order of dismissal after presenting evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, thatcontention is without merit (seegenerally People v Danielson, 9 NY3d 342, 349 [2007]). County Court reasonably couldhave inferred such intent from defendant's numerous threats to kill the victim and his subsequentconduct of stabbing the victim five times in the chest (see People v Massey, 61 AD3d 1433, 1433-1434 [2009], lvdenied 13 NY3d 746 [2009]; People v Ortiz, 212 AD2d 444, 445 [1995], lvdenied 85 NY2d 941 [1995]). Contrary to defendant's further contention, the court was notempowered to consider the lesser included offense of assault in the second degree (§120.05 [1]) because there is no "reasonable view of the evidence . . . that wouldsupport a finding that" defendant intended to cause serious physical injury to the victim but didnot intend to kill her (People v Glover, 57 NY2d 61, 63 [1982]). Viewing the evidence inlight of the elements of the crime of attempted murder in the second degree in this nonjury trial(see Danielson, 9 NY3d at 349), we conclude that the verdict with respect to that crime isnot against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]).
Although defendant contends that the court erred in refusing to suppress statements that hemade to police after he was arrested, such statements were never used at trial, and thusdefendant's contention is moot. The sentence is not unduly harsh or severe. We have considereddefendant's remaining contention and conclude that it is without merit. Present—Smith,J.P., Carni, Lindley and Sconiers, JJ.