| People v Moorer |
| 2016 NY Slip Op 02235 [137 AD3d 1711] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobert C. Moorer, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo Salzer &Andolina P.C. (Eric M. Dolan of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered November 17, 2010. The judgment convicted defendant, upon a jury verdict, ofreckless endangerment in the first degree and criminal possession of a weapon in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment, following a jury trial, convictinghim of reckless endangerment in the first degree (Penal Law § 120.25) andcriminal possession of a weapon in the third degree (§ 265.02 [1]). Contraryto defendant's contention, the verdict with respect to reckless endangerment in the firstdegree is not against the weight of the evidence. Viewing the elements of that crime ascharged to the jury, we conclude that the elements were proved beyond a reasonabledoubt (see People vDanielson, 9 NY3d 342, 349 [2007]). The evidence established that defendantfired a rifle with large caliber ammunition from a distance of 12 to 15 feet at a 45-degreeangle toward a group of children playing soccer at an apartment complex and, "in doingso, he created a grave risk of death under circumstances evincing a depraved indifferenceto human life" (People vCollins, 70 AD3d 1366, 1367 [2010], lv denied 14 NY3d 839 [2010]; see People v Payne, 71 AD3d1289, 1290 [2010], lv denied 15 NY3d 777 [2010]; People v Lobban, 59 AD3d566, 566 [2009], lv denied 12 NY3d 818 [2009]; cf. People v Stanley, 108AD3d 1129, 1131 [2013], lv denied 22 NY3d 959 [2013]). Even assuming,arguendo, that a different verdict would not have been unreasonable (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]), we conclude that the jury did not failto give the evidence the weight it should be accorded (see Collins, 70 AD3d at1367).
We reject defendant's contention that County Court erred in permitting the People tooffer testimony regarding a second rifle and ammunition for both rifles, which wereretrieved by the police from the open trunk of defendant's car, inasmuch as that evidencewas relevant to show defendant's intent to use the weapon he had fired against anotherperson (see People vMadera, 103 AD3d 1197, 1199-1200 [2013], lv denied 21 NY3d 1006[2013]). We further conclude that the probative value of that evidence is not outweighedby its alleged prejudicial effect (see generally People v Dorm, 12 NY3d 16, 19 [2009]).Defendant failed to object to the testimony regarding the military capability of theammunition and thus failed to preserve for our review his contention that the court erredin permitting that testimony on the ground that its prejudicial effect outweighed theprobative value (see People vGarcia-Santiago, 60 AD3d 1383, 1383 [2009], lv denied 12 NY3d 915[2009]; People v Eades, 198 AD2d 905, 905 [1993], lv denied 83 NY2d804 [1994]). In any event, we conclude that the contention is without merit.Present—Whalen, P.J., Smith, Carni, Nemoyer and Curran, JJ.