| People v Santiago |
| 2015 NY Slip Op 08971 [134 AD3d 472] |
| December 8, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Brandin Santiago, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Susan Epstein ofcounsel), for appellant.
Brandin Santiago, appellant pro se.
Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ann M. Donnelly, J.), rendered July 27,2011, as amended August 12, 2011, convicting defendant, after a jury trial, of murder inthe second degree, attempted murder in the second degree (two counts) and criminalpossession of a weapon in the second degree, and sentencing him to an aggregate term of75 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]). The evidence, including the number of shots fired and thesurrounding circumstances, supports an inference that defendant intended to kill two menwith whom he had been involved in a dispute. Accordingly, defendant was also liable forthe death of a third victim under a transferred intent theory. The inference of homicidalintent was not undermined by the fact that he hit the two surviving victims in the lowerextremities, because "[t]he location of the wounds does not establish the directionof defendant's aim" (People v Blue, 55 AD3d 391, 391 [1st Dept 2008], lvdenied 11 NY3d 922 [2009]). Defendant's claim that he lacked a propensity forviolence is irrelevant to weight of the evidence review, and is in any event based onevidence not presented to the jury. To the extent defendant is making a legal sufficiencyclaim, in his pro se brief or otherwise, it is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we similarly reject it.
The court properly exercised its discretion in denying defendant's mistrial motion,made on the basis of a brief phrase of testimony that could be viewed as bolsteringidentifications made by other witnesses. The court sustained an objection and struck thetestimony. The drastic remedy of a mistrial was not warranted, because the offendingphrase was not particularly harmful, and because the court's curative actions weresufficient to prevent any prejudice (see People v Santiago, 52 NY2d 865 [1981];see also People v Young, 48 NY2d 995 [1980]).
We have considered and rejected defendant's pro se arguments.
We perceive no basis for reducing the sentence. Concur—Tom, J.P.,Friedman, Saxe and Gische, JJ. [Prior Case History: 32 Misc 3d 1244(A), 2011 NYSlip Op 51701(U).]