| People v Williams |
| 2018 NY Slip Op 00741 [158 AD3d 1170] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Romeo Williams, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedOctober 22, 2014. The judgment convicted defendant, upon a jury verdict, of manslaughter in thefirst degree and assault in the 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 jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]) and assault in the seconddegree (§ 120.05 [12]). The evidence at trial established that, after a night ofdrinking alcohol and taking recreational drugs, defendant punched a 70-year-old man in the faceoutside a convenience store, without any provocation. Defendant entered the store, and whilethere he announced that he was going back outside into the parking lot to "kick the guy in theface" and "knock [him] out." Witnesses observed as defendant kicked the victim in the facerepeatedly and then fled. A bystander then approached the victim, who was "gurgling for breath."When paramedics arrived seven minutes later, the victim had no pulse. He never regainedconsciousness.
Defendant contends that his conviction on the count of manslaughter in the first degree isbased on legally insufficient evidence of intent to cause serious physical injury. Preliminarily,contrary to the People's assertion, defendant preserved his contention for our review inasmuch ashis motion for a trial order of dismissal was " 'specifically directed' at the alleged error"(People v Gray, 86 NY2d 10, 19 [1995]). Nevertheless, viewing the evidence in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that the evidence is legally sufficient to support the conviction (see generally Peoplev Bleakley, 69 NY2d 490, 495 [1987]). "[A] defendant may be presumed to intend thenatural and probable consequences of his [or her] actions" (People v Meacham, 151 AD3d 1666, 1668 [4th Dept 2017], lvdenied 30 NY3d 981 [2017] [internal quotation marks omitted]), and "the natural andprobable consequence of repeatedly [striking] a defenseless man in the face is that he will sustaina serious physical injury within the meaning of Penal Law § 10.00 (10)" (People v Williams, 94 AD3d 1452,1452 [4th Dept 2012], lv denied 19 NY3d 978 [2012]; see People v Mahoney, 6 AD3d1104, 1104 [4th Dept 2004], lv denied 3 NY3d 660 [2004]). Furthermore, it is wellsettled that "[a]n intoxicated person can form the requisite criminal intent to commit a crime, andit is for the trier of fact to decide if the extent of the intoxication acted to negate the element ofintent" (People v Gonzalez, 6 AD3d457, 457 [2d Dept 2004], lv denied 2 NY3d 799 [2004]; see People v Principio, 107 AD3d1572, 1573 [4th Dept 2013], lv denied 22 NY3d 1090 [2014]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that he was denied a fair trial[*2]based on prosecutorial misconduct during summation (see People v Santos, 151 AD3d1620, 1621-1622 [4th Dept 2017], lv denied 29 NY3d 1133 [2017]), and we declineto exercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Furthermore, the evidence, the law, and the circumstances ofthis case, viewed in totality and as of the time of the representation, establish that defensecounsel provided defendant with meaningful representation (see generally People v Baldi,54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh and severe. Present—Whalen, P.J., Smith,Lindley, NeMoyer and Troutman, JJ.