| People v Lucas |
| 2012 NY Slip Op 03009 [94 AD3d 1441] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ivan Lucas,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (John P. Gerken, Jr., of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Shirley Troutman, J.), renderedJanuary 26, 2010. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and criminal possession of a weapon 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 upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1] [intentional murder]) and criminalpossession of a weapon in the second degree (§ 265.03 [3]). Contrary to defendant'scontention, the conviction is supported by legally sufficient evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Addressing first the conviction of intentional murder,we note that " '[i]ntent to kill may be inferred from defendant's conduct as well as thecircumstances surrounding the crime' " (People v Badger, 90 AD3d 1531, 1532 [2011]; see People v Geddes, 49 AD3d1255, 1256 [2008], lv denied 10 NY3d 863 [2008]). Here, viewing the evidence inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]),we conclude that it is legally sufficient to establish defendant's intent to kill. The Peoplepresented evidence that defendant had quarreled with the victim immediately before the shooting(see People v Henning, 267 AD2d 1092, 1092 [1999], lv denied 94 NY2d 903[2000]). In addition, the shooting occurred while defendant was facing the victim and, with theencouragement of a bystander, defendant pointed a gun toward the victim from a few feet awayand fired that weapon (see People vCobb, 72 AD3d 1565, 1565 [2010], lv denied 15 NY3d 803 [2010]; People vColon, 275 AD2d 797, 797 [2000], lv denied 95 NY2d 904 [2000]). With respect tothe conviction of criminal possession of a weapon, "[t]he evidence, viewed in the light mostfavorable to the People . . . , is legally sufficient to disprove defendant's defense oftemporary and lawful possession of a weapon" (People v Miller, 259 AD2d 1037 [1999],lv denied 93 NY2d 927 [1999]; see generally Bleakley, 69 NY2d at 495).
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 further conclude that the verdict is not against the weight of theevidence (see Bleakley, 69 NY2d at 495). "[R]esolution of issues of credibility, as well asthe weight to be accorded to the evidence presented, are primarily questions to be [*2]determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457 [2009], lvdenied 13 NY3d 942 [2010] [internal quotation marks omitted]). Finally, thesentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Fahey and Sconiers,JJ.