| People v Torres |
| 2016 NY Slip Op 00844 [136 AD3d 1329] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGuillermo Torres III, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Guillermo Torres, III, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered November 21, 2011. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree and assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]) and assault in the first degree (§ 120.10 [1]), defendant contends thatthe evidence is legally insufficient to support the conviction of attempted murder becausethe People failed to prove the element of intent. Defendant failed to preserve thatcontention for our review, however, "because his motion for a trial order of dismissalwas not specifically directed at the ground[ ] advanced on appeal and because he failedto renew his motion after presenting evidence" (People v Wright, 107 AD3d 1398, 1401 [2013], lvdenied 23 NY3d 1026 [2014]; see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]; People v Gray, 86 NY2d 10, 19[1995]). In any event, the contention is without merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). It is well established that "[i]ntent to kill maybe inferred from defendant's conduct as well as the circumstances surrounding the crime"(People v Lopez, 96 AD3d1621, 1622 [2012] [internal quotation marks omitted], lv denied 19 NY3d998 [2012]; see People vPrice, 35 AD3d 1230, 1231 [2006], lv denied 8 NY3d 926 [2007]).Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that it is legally sufficient toestablish defendant's intent to kill. "The People presented evidence that defendant andthe victim quarreled immediately before the shooting . . . , and thatdefendant was only a few feet away from the victim when defendant pointed a gun at himand then fired that weapon" (Lopez, 96 AD3d at 1622). Furthermore, viewing theevidence in light of the elements of the crimes 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 Bleakley, 69 NY2d at 495).
We reject defendant's further contention that Supreme Court erred in failing suasponte to order a competency hearing to determine whether defendant was fit to proceedat the time of sentencing (see People v Tortorici, 92 NY2d 757, 765-766 [1999],cert denied 528 US 834 [1999]; People v Morgan, 87 NY2d 878, 879-880[1995]; People v Garrasi, 302 AD2d 981, 982-983 [2003], lv denied 100NY2d 538 [2003]). The court " 'had the opportunity to interact with and observedefendant . . . , [and thus] the court had adequate opportunity to properlyassess defendant's competency' " (People v Chicherchia, 86 AD3d 953, 954 [2011], lvdenied 17 NY3d 952 [2011]; see People v Cipollina, 94 AD3d 1549, 1550 [2012], lvdenied 19 NY3d 971 [2012]). "Moreover, [we] note[ ] that defense counsel did notrequest a hearing and, as it has been observed, [defense] counsel was in the best positionto assess defendant's capacity" (Cipollina, 94 AD3d at 1549-1550 [internalquotation marks omitted]).[*2]"On the contrary, defensecounsel . . . made clear that defendant was competent" to proceed on the dayof sentencing (Tortorici, 92 NY2d at 767).
We conclude that defendant's contention in his pro se supplemental brief that "he wasdenied a preliminary hearing is of no moment" (People v Kirk, 96 AD3d 1354, 1358 [2012], lvdenied 20 NY3d 1012 [2013]). It is well established that "[t]here is no constitutionalor statutory right to a preliminary hearing . . . , nor is it a jurisdictionalpredicate to indictment" (id. [internal quotation marks omitted]; see People v Caswell, 56 AD3d1300, 1302 [2008], lv denied 11 NY3d 923 [2009], reconsiderationdenied 12 NY3d 781 [2009]). "[E]ven assuming, arguendo, that defendant wasdenied a preliminary hearing, we conclude that the failure to hold such a hearing does notrequire dismissal of the indictment or a new trial" (Kirk, 96 AD3d at 1358;see People v Bensching, 117 AD2d 971, 972 [1986], lv denied 67 NY2d939 [1986]; see also People v Russ, 292 AD2d 862, 862 [2002], lv denied98 NY2d 713 [2002], reconsideration denied 99 NY2d 539 [2002]). To theextent that the contentions in defendant's pro se supplemental brief involve mattersoutside the record on appeal, those contentions must be raised by way of a motionpursuant to CPL article 440 (seePeople v Kreutter, 121 AD3d 1534, 1535 [2014], lv denied 25 NY3d990 [2015]; People vBrown, 120 AD3d 1545, 1546 [2014], lv denied 24 NY3d 1082 [2014]).Further, to the extent that we are able to review defendant's contention that he was deniedeffective assistance of counsel based on the record before us, we conclude that defensecounsel provided meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]). We have considered the remaining contentions in defendant'spro se supplemental brief and conclude that they are without merit. Finally, the sentenceis not unduly harsh or severe. Present—Smith, J.P., Peradotto, Carni, Lindley andWhalen, JJ.