| People v Wiley |
| 2013 NY Slip Op 01968 [104 AD3d 1314] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v FrankWiley, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Seth T. Molisani of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered February 9, 2011. The judgment convicted defendant, upon a jury verdict,of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofassault in the second degree (Penal Law § 120.05 [2]), defendant correctlyconcedes that he failed to preserve for our review his contention that he was denied a fairtrial by prosecutorial misconduct on summation (see CPL 470.05 [2]), and wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). We also reject defendant's contentionthat he was denied effective assistance of counsel based on defense counsel's failure toobject to the alleged prosecutorial misconduct on summation. Viewing the evidence, thelaw and the circumstances of this case, in totality and as of the time of the representation,we conclude that defendant received meaningful representation (see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]; People v Brown, 67 AD3d 1369, 1370 [2009], lvdenied 14 NY3d 886 [2010]).
Contrary to defendant's further contention, the conviction is supported by legallysufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).We note in particular the well-established principle that "[i]ntent, like any other elementof a crime, may be proved by circumstantial evidence" (People v Ozarowski, 38NY2d 481, 489 [1976]; see People v Steinberg, 79 NY2d 673, 682 [1992]). Inthis case, the People established through the testimony of the victim and the eyewitnessthat defendant had the requisite intent. Although the victim did not see defendant strikehim with the mug, the victim testified that defendant was next to him when he felt theimpact from the mug. Also, the eyewitness testified that he saw defendant swing the mugat the victim. We thus conclude that, viewing the evidence in the light most favorable tothe People, "there is a valid line of reasoning and permissible inferences from which arational jury could have found the elements of the crime proved beyond a reasonabledoubt" (People v Danielson,9 NY3d 342, 349 [2007] [internal quotation marks omitted]). Additionally, viewingthe evidence in light of the elements of the crime as charged to the jury (see id.),we conclude that the verdict is not [*2]against the weightof the evidence (see generally Bleakley, 69 NY2d at 495).Present—Scudder, P.J., Fahey, Sconiers, Valentino and Martoche, JJ.