| People v McLawrence |
| 2014 NY Slip Op 01342 [114 AD3d 964] |
| February 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michele McLawrence, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andDiane R. Eisner of counsel), for respondent.
Motion by the respondent, in effect, for leave to reargue an appeal from a judgmentof the Supreme Court, Kings County, rendered September 16, 2010, which wasdetermined by decision and order of this Court dated July 3, 2013 (108 AD3d 571[2013]).
Upon the papers filed in support of the motion and no papers having been filed inopposition or in relation thereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order ofthis Court dated July 3, 2013, is recalled and vacated, and the following decision andorder is substituted therefor:
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered September 16, 2010, convicting him of attempted murder in thesecond degree, assault in the first degree, criminal possession of a weapon in the seconddegree, and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was arrested for shooting the complainant, his former friend, outsidethe apartment building where the defendant resided and where the complainant formerlyresided with his aunt. The complainant testified that after the defendant shot him, thedefendant ran into that apartment building. When the police arrived, the complainantidentified the defendant's apartment number for one of the officers. When one of theofficers went to the roof of the apartment building, he saw the defendant stick his headout of a window and throw out a silver handgun, which subsequently was recovered fromthe courtyard outside the building. The police secured a search warrant for thedefendant's apartment and recovered, inter alia, a sawed-off shotgun and a .9 mm pistolfrom a duffle bag in the defendant's apartment. Neither the shotgun nor the pistol waslinked to the defendant by DNA or other forensic evidence.[*2]
At trial, the complainant testified that thedefendant shot at him several times from three or four feet away, and that he was struckby one bullet in the forearm when he raised his arms to protect himself. The complainantfurther testified that he believed the reason the defendant shot him was because thecomplainant had told people in the neighborhood that the defendant was a "snitch" afterthe police raided the apartment where the complainant lived with his aunt. In addition tohaving the bullet removed, a week after the shooting the complainant underwent surgeryto repair his injured forearm, which had an unstable fracture and required the insertion ofpermanent plates and pins to stabilize it.
The defendant was convicted of attempted murder in the second degree, assault inthe first degree, criminal possession of a weapon in the second degree, and criminalpossession of a weapon in the third degree relating to the shotgun retrieved from theduffle bag in the defendant's apartment.
The defendant's challenge to the legal sufficiency of the evidence supporting hisconviction of attempted murder in the second degree is unpreserved for appellate review(see CPL 470.05 [2]; People v Finger, 95 NY2d 894, 895 [2000];People v Gray, 86 NY2d 10, 19-21 [1995]; People v Betts, 292 AD2d539, 540 [2002]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish the defendant's guilt of attempted murder in the seconddegree beyond a reasonable doubt (see People v Soto, 8 AD3d 683, 684-685 [2004]).Moreover, we are satisfied that the verdict of guilt on that count was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). Notwithstanding the fact that only onebullet struck the complainant, the jury could reasonably infer that the defendant intendedto kill, rather than merely frighten, the complainant by repeatedly shooting him at closerange (see Penal Law §§ 110.00, 125.25 [1]; People v Lewis, 72 AD3d705, 706 [2010]; People vSantana, 70 AD3d 448 [2010]; People v Hall, 242 AD2d 734, 735[1997]).
The defendant's contention, in effect, that the evidence was legally insufficient tosupport his conviction of assault in the first degree is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Serrano, 74 AD3d1104, 1105 [2010]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d at 621), we find that it waslegally sufficient to establish the defendant's guilt of that crime beyond a reasonabledoubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633 [2006]). Contrary to thedefendant's contention, the jury reasonably could have inferred that the complainantsustained a serious physical injury within the meaning of Penal Law § 10.00 (10)(see CPL 120.10 [1]; People v Kern, 75 NY2d 638, 658 [1990], certdenied 498 US 824 [1990]; People v Moreno, 233 AD2d 531, 532 [1996]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including the contentions raised in his pro sesupplemental brief, are not preserved for appellate review and, in any event, are withoutmerit. Rivera, J.P., Dillon, Dickerson and Austin, JJ., concur.