| People v Hamilton |
| 2012 NY Slip Op 04844 [96 AD3d 1518] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Adam J.Hamilton, Appellant. |
—[*1] Adam J. Hamilton, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered May24, 2010. The judgment convicted defendant, upon a jury verdict, of attempted murder in the firstdegree (two counts), attempted murder in the second degree and aggravated criminal contempt.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial oftwo counts of attempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1][a] [i]; [b]) and one count each of attempted murder in the second degree (§§110.00, 125.25 [1]) and aggravated criminal contempt (§ 215.52 [1]). Defendant contendsthat County Court erred in denying his request to charge the jury on attempted murder in thesecond degree as a lesser included offense of one of the counts of attempted murder in the firstdegree. We conclude that defendant waived his contention by withdrawing his request for thatcharge (see People v Gomez, 297 AD2d 388 [2002]; People v Hernandez, 297AD2d 389 [2002]).
Defendant further contends that the court erred in allowing a police investigator, whom wenote had extensive training regarding crime scene reconstruction, to testify with respect topossible bullet trajectories because he was not qualified and usurped the jury's fact-findingfunction. That contention is unpreserved for our review inasmuch as defendant failed to object tothe investigator's testimony on those grounds (see generally People v Osuna, 65 NY2d822, 824 [1985]; People v Smith, 24AD3d 1253 [2005], lv denied 6 NY3d 818 [2006]). In any event, "[i]t is wellestablished that the admissibility and scope of expert testimony is committed to the sounddiscretion of the trial court" (People v Fish, 235 AD2d 578, 579 [1997], lv denied89 NY2d 1092 [1997]; see People v Cronin, 60 NY2d 430, 433 [1983]). Where apolice investigator has sufficient "practical experience . . . , his [or her] lack offormal education in ballistics and trajectories" may not disqualify the investigator from testifyingwith respect thereto (People v Brockenshire, 245 AD2d 1065, 1065-1066 [1997], lvdenied 91 NY2d 940 [1998]). We further conclude that the court properly admitted inevidence the testimony of the People's expert reconstruction witness, inasmuch as it was basedon his specialized knowledge and was helpful in aiding the jury to reach its verdict (seePeople v [*2]Brown, 97 NY2d 500, 505 [2002];Cronin, 60 NY2d at 432-433).
We reject defendant's contention that the treating physician of one of the victims should nothave been permitted to testify that a projectile from a shotgun caused the victim's injuries. Thephysician testified that he has been employed as a trauma surgeon since 1991, is board certifiedin critical care and general surgery and has seen and treated several hundred patients withgunshot wounds. Consequently, we conclude that the court properly determined that thephysician had "the requisite skill, training, education, knowledge or experience" to provide areliable opinion (Matott v Ward, 48 NY2d 455, 459 [1979]; see People v Geraci,254 AD2d 522, 524 [1998]). We reject defendant's further contention in his main and pro sesupplemental briefs that the court erred in ordering that the sentences imposed for attemptedmurder in the first degree run consecutively to each other. "[W]here, as here, separate acts arecommitted against different victims during the same criminal transaction, the court may properlyimpose consecutive sentences in the exercise of its discretion" (People v Jones, 79 AD3d 1773,1774 [2010], lv denied 16 NY3d 832 [2011]). The sentence is not unduly harsh or severe.
Defendant's remaining contentions are raised in his pro se supplemental brief. We reject hiscontention that the court erred in refusing to charge assault in the second degree (Penal Law§ 120.05 [2]) as a lesser included offense of attempted murder in the second degree (see People v Hymes, 70 AD3d1371, 1372-1373 [2010], lv denied 15 NY3d 774 [2010]; see generally People vGreen, 56 NY2d 427, 430-432 [1982], rearg denied 57 NY2d 775 [1982]). Themajority of instances cited by defendant in support of his further contention that he was deniedeffective assistance of counsel involve matters outside the record and thus must be raised by wayof a motion pursuant to CPL article 440 (see People v Russell, 83 AD3d 1463, 1465 [2011], lv denied17 NY3d 800 [2011]), and we conclude that defendant otherwise received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Defendant'sremaining contentions are unpreserved for our review (see CPL 470.05 [2]), and wedecline to exercise our power to review them as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
All concur except Gorski, J., who is not participating. Present—Smith, J.P., Fahey,Carni, Sconiers and Gorski, JJ.