| People v Jeffrey |
| 2018 NY Slip Op 05692 [164 AD3d 604] |
| August 8, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eric Jeffrey, Appellant. |
Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Victor Barall, andAvshalom Yotam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Edward K.Pincus, J.), rendered August 8, 1994, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On the evening of July 8, 1992, a group of four or five teenagers entered the courtyard of theKingsborough Housing Project and opened fire in the direction of several teenagers, includingAmbrose Roberts (hereinafter the victim), who were seated on a brick wall in the middle of thecourtyard. The victim was shot in the forehead and killed. Another teenager, who was shot in theleg, reported to the police that the defendant and a codefendant were two of the shooters. Thedefendant and codefendant were charged and, following a jury trial at which the teenager whowas shot in the leg testified, convicted of murder in the second degree and criminal possession ofa weapon in the second degree. The defendant appeals.
Initially, the defendant's contention that the evidence was legally insufficient to support hisconviction of murder in the second degree (see Penal Law § 125.25 [1]) andcriminal possession of a weapon in the second degree (see Penal Law§ 265.03 [1]) is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Williams, 124AD3d 920, 921 [2015]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Calabria,3 NY3d 80, 81-82 [2004]), we find that it was legally sufficient to establish that thedefendant shot a loaded firearm with the intent to cause the victim's death (see People vWilliams, 124 AD3d at 921; Peoplev Francois, 85 AD3d 813, 814 [2011]; People v Jones, 309 AD2d 819, 820[2003]). Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we are satisfied that theverdict as to both counts was not against the weight of the evidence (see People v Romero, 7 NY3d633, 645-646 [2006]; People v Williams, 124 AD3d at 921).
The defendant's contentions that the Supreme Court committed reversible error by instructingthe jury on the doctrine of transferred intent and by providing an inadequate recharge on intentand accessorial liability are unpreserved for appellate review (see CPL 470.05 [2];People v [*2]Hawkins, 11 NY3d at 495; People v Thomas, 139 AD3d 764,765 [2016]; People v Harris, 115AD3d 761, 762 [2014]). In any event, these contentions are without merit. Since thedefendant was charged with violating Penal Law § 125.25 (1), and that statuteprovides that a defendant is guilty of murder in the second degree when, with intent to cause thedeath of another person, he or she causes the death of such person or of a third person, aninstruction on transferred intent was appropriate (see generally People v Wells, 7 NY3d 51, 56-57 [2006]; Peoplev Harris, 115 AD3d at 762). As for the recharge, while certain aspects were inartfullyworded, "[v]iewing the problematic language in the broader context of the supplementalinstruction and the jury charge as a whole, the court conveyed the proper legal standards" (People v Simmons, 15 NY3d 728,729 [2010]; see People v Cabassa, 79 NY2d 722, 731 [1992]; People v Green, 50NY2d 891, 891 [1980]; People vAinsley, 132 AD3d 1007, 1009 [2015]; People v Torres, 46 AD3d 925, 925-926 [2007]).
The defendant's challenges to certain remarks made by the prosecutor during summation arealso unpreserved for appellate review (see CPL 470.05 [2]). In any event, the challengedportions of the prosecutor's summation were fair comment on the evidence and the reasonableinferences to be drawn therefrom (seePeople v Rudenko, 151 AD3d 1084, 1085 [2017]; People v Guzman, 138 AD3d 1140, 1140 [2016]; People v Ramrattan, 126 AD3d1013, 1014 [2015]), were fair response to the defense summation (see People vHalm, 81 NY2d 819, 821 [1993]; People v Johnson, 127 AD3d 1234, 1234 [2015]), or do nototherwise require reversal (see People v Galloway, 54 NY2d 396, 399 [1981]).
The defendant's challenges to the Supreme Court's ruling on alleged Batson issues(see Batson v Kentucky, 476 US 79 [1986]) during jury selection are without merit(see Purkett v Elem, 514 US 765, 769 [1995]; People v Smocum, 99 NY2d 418,421-422 [2003]; People v Payne, 88 NY2d 172, 182 [1996]; People v Allen, 86NY2d 101, 111 [1995]; see also DeBerry v Portuondo, 403 F3d 57, 62 [2d Cir 2005]).Rivera, J.P., Hinds-Radix, LaSalle and Brathwaite Nelson, JJ., concur.