| People v Vrooman |
| 2014 NY Slip Op 01860 [115 AD3d 1189] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRonald L. Vrooman, Appellant. |
—[*1] Ronald L. Vrooman, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel),for respondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedOctober 31, 2008. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]). Defendant'scontention that the prosecutor erred in eliciting testimony with respect to defendant'sinvocation of the right to counsel is not preserved for our review (see CPL470.05 [2]; see also People vKithcart, 85 AD3d 1558, 1559-1560 [2011], lv denied 17 NY3d 818[2011]). In any event, we conclude that any error with respect thereto is "harmlessbeyond a reasonable doubt inasmuch as there is no reasonable possibility that the error[ ]might have contributed to defendant's conviction" (People v Capers, 94 AD3d 1475, 1476 [2012], lvdenied 19 NY3d 971 [2012] [internal quotation marks omitted]; see Kithcart,85 AD3d at 1559-1560; see generally People v Crimmins, 36 NY2d 230, 237[1975]). Defendant was not denied effective assistance of counsel by defense counsel'sfailure to object to that testimony (see People v Caban, 5 NY3d 143, 152 [2005]; People v Williams, 107 AD3d1516, 1517 [2013], lv denied 21 NY3d 1047 [2013]) and, viewing theevidence, the law and the circumstances of the case, in totality and at the time of therepresentation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
In his pro se supplemental brief, defendant contends that the conviction is not basedon legally sufficient evidence. We reject that contention. Here, the evidence adduced attrial establishes that the victim was brutally beaten and had a petechial injury in her eyecommonly associated with asphyxiation; that the victim was left to die after the beating;that defendant's DNA was found on the victim; that defendant's fingerprint was found ona cup located approximately 30 inches from the victim's body; and that defendantadmitted to the People's final witness his role in the "killing" of a person who matchedsome of the victim's characteristics and who was killed at approximately the same time asthe victim. Defendant [*2]challenges the legal sufficiencyof the evidence on the specific grounds that the People failed to establish his identity asthe victim's killer and his intent to kill the victim. Defendant's challenge to the legalsufficiency of the evidence with respect to intent is unpreserved for our review (seegenerally People v Gray, 86 NY2d 10, 19 [1995]; People v Scott, 61 AD3d1348, 1349 [2009], lv denied 12 NY3d 920 [2009], reconsiderationdenied 13 NY3d 799 [2009]). In any event, in light of the above evidence, weconclude that both of defendant's challenges to the legal sufficiency of the evidence lackmerit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant contends that the verdict is against the weight of the evidence because thetestimony of the People's final witness was incredible. We reject that contention. " '"[R]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury" ' " (People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010]), and we see noreason to disturb the jury's resolution of those issues in this case. Defendant alsocontends that the verdict is against the weight of the evidence with respect to the issuesof intent and identification, arguing specifically that the evidence establishes only that hehad sexual contact with the victim on the night she was killed, and not that he killed her.Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). We note in particular that"intent [to kill] 'may be inferred from defendant's conduct as well as the circumstancessurrounding the crime' " (Peoplev Massey, 61 AD3d 1433, 1433 [2009], lv denied 13 NY3d 746 [2009];see generally People vGeddes, 49 AD3d 1255, 1256 [2008], lv denied 10 NY3d 863 [2008]).
Finally, defendant contends in his pro se supplemental brief that County Court erredin failing to submit the lesser included offense of "manslaughter" to the jury. "Defendantdid not ask the court to so charge and therefore failed to preserve his contention[ ] forour review" (People v Gibbs, 286 AD2d 865, 867 [2001], lv denied 97NY2d 704 [2002]; see People vTaylor, 83 AD3d 1505, 1506 [2011], lv denied 17 NY3d 822 [2011]),and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). Present—Scudder, P.J.,Fahey, Peradotto, Lindley and Sconiers, JJ.