| People v Caldwell |
| 2012 NY Slip Op 06433 [98 AD3d 1272] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelCaldwell, Appellant. |
—[*1] Jeffrey S. Carpenter, Assistant District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel),for respondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered March30, 2009. The judgment convicted defendant, upon a jury verdict, of attempted murder in thesecond degree, assault in the first degree and criminal possession of a weapon in the fourthdegree.
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 fourth degree(§ 265.01 [2]). Defendant's contention that he was denied due process when the Peopleimpeached a prosecution witness in violation of CPL 60.35 (3) and offered prior bad acttestimony in violation of County Court's Ventimiglia ruling is not preserved for ourreview (see CPL 470.05 [2]), and we decline to exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendantcontends that the conviction of attempted murder and assault is not supported by legallysufficient evidence and that the verdict is against the weight of the evidence. Defendantpreserved his contention concerning the legal sufficiency of the evidence only insofar as healleges that there was no evidence of his intent to cause death or serious physical injury (seePeople v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in the light most favorable tothe People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it islegally sufficient to establish defendant's intent to cause death and serious physical injury.Defendant's intent may be inferred from his conduct (see People v Badger, 90 AD3d 1531, 1532 [2011], lvdenied 18 NY3d 991 [2012]), and his statements to the 911 operator established his intent.The People presented evidence that defendant and the victim fought immediately before theshooting, and that defendant retreated to his house to obtain a weapon and upon returning firedseveral shots at the victim. The People also presented evidence of defendant's 911 call after thefight, wherein he stated that emergency responders should "[h]urry up," that defendant was goingto "shoot him," and that the victim would die. Viewing the evidence in light of the elements ofthe crimes of attempted murder and assault 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 generally People v Bleakley, 69 NY2d 490, 495 [1987]).[*2]
Defendant's contention that he was denied a fair trialbased on prosecutorial misconduct on summation is not preserved for our review (seeCPL 470.05 [2]) and, in any event, we conclude that "[a]ny 'improprieties were not so pervasiveor egregious as to deprive defendant of a fair trial' " (People v Johnson, 303 AD2d 967,968 [2003], lv denied 100 NY2d 583 [2003]). Contrary to defendant's contention, thecourt properly denied his request for a justification charge (see People v Hall, 48 AD3d 1032, 1033 [2008], lv denied11 NY3d 789 [2008]). Viewing the record in the light most favorable to defendant (seePeople v Reynoso, 73 NY2d 816, 818 [1988]; People v McManus, 67 NY2d 541,549 [1986]), we conclude that there is no reasonable view of the evidence that would permit thejury to determine that defendant's use of deadly physical force was justified (see PenalLaw § 35.15 [2] [a]; People vHartman, 86 AD3d 711, 712-713 [2011], lv denied 18 NY3d 859). The sentenceis not unduly harsh or severe. We have reviewed defendant's remaining contentions and concludethat they are without merit. Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers,JJ.