| People v Moreland |
| 2013 NY Slip Op 00875 [103 AD3d 1275] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Erica L. Moreland, Appellant. (Appeal No.2.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered February 25, 2011. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree.
It is hereby ordered that the appeal from the judgment insofar as it imposed sentenceis unanimously dismissed and the judgment is affirmed.
Memorandum: In appeal No. 2, defendant appeals from a judgment convicting herfollowing a jury trial of assault in the second degree (Penal Law § 120.05 [2]) forphysically injuring the victim by kicking her with a stiletto boot and, in appeal No. 1, sheappeals from the subsequent resentence.
Addressing appeal No. 2 first, we note that defendant failed to preserve for ourreview her contention that the prosecutor engaged in misconduct by failing to provide asufficient notice of intent to introduce Molineux evidence (see CPL470.05 [2]; see also People vNappi, 83 AD3d 1592, 1594 [2011], lv denied 17 NY3d 820 [2011]). Inany event, that contention lacks merit inasmuch as the alleged misconduct "did not cause[] such substantial prejudice to the defendant that [she] has been denied due process oflaw" (People v Scott, 78AD3d 1531, 1532 [2010], lv denied 17 NY3d 801 [2011] [internal quotationmarks omitted]). Contrary to defendant's further contention, we conclude that shereceived meaningful representation (see generally People v Baldi, 54 NY2d 137,147 [1981]). "The alleged instances of ineffective assistance concerning defensecounsel's failure to make various objections [or certain motions or requests] are basedlargely on [defendant's] hindsight disagreements with defense counsel's trial strategies,and defendant failed to meet [her] burden of establishing the absence of any legitimateexplanations for those strategies" (People v Douglas, 60 AD3d 1377, 1377 [2009], lvdenied 12 NY3d 914 [2009] [internal quotation marks omitted]).
Additionally, although defendant moved to dismiss the indictment at the close of thePeople's case based on the alleged legal insufficiency of the evidence, she failed to renewher motion after presenting evidence and thus failed to preserve for our review herpresent contention that the evidence is legally insufficient to establish her intent to causephysical injury (see People[*2]v Diefenbacher, 21 AD3d 1293, 1294[2005], lv denied 6 NY3d 775 [2006]). In any event, viewing the evidence in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that it is legally sufficient to establish that defendant possessed therequisite intent.
Moreover, viewing the evidence in light of the element of intent as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respectto that element is not against the weight of the evidence. "A defendant may be presumedto intend the natural and probable consequences of his [or her] actions . . . ,and [i]ntent may be inferred from the totality of conduct of the accused" (People v Mahoney, 6 AD3d1104, 1104 [2004], lv denied 3 NY3d 660 [2004] [internal quotation marksomitted]; see generally People vBadger, 90 AD3d 1531, 1532 [2011], lv denied 18 NY3d 991 [2012]).The victim and defendant both testified that they were engaged in a physical altercationand were intentionally striking at each other with their fists. Defendant testified that,during the altercation, she kicked her stiletto boot in the direction of the victim. Althoughdefendant testified that she did not intend to kick the victim, that testimony is belied byher actions. Thus, "it cannot be said that the jury failed to give the evidence the weightthat it should be accorded" (People v Mike, 283 AD2d 989, 989 [2001], lvdenied 96 NY2d 904 [2001]).
With respect to appeal No. 1, we conclude that the sentence imposed at resentencingis not unduly harsh or severe. Present—Smith, J.P., Peradotto, Lindley, Sconiersand Valentino, JJ.