| People v Lozada |
| 2018 NY Slip Op 06373 [164 AD3d 1626] |
| September 28, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jerami Lozada, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Elizabeth Riker of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered June22, 2015. The judgment convicted defendant, upon a jury verdict, of murder in the second degreeand criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder inthe second degree (Penal Law § 125.25 [1]) and two counts of criminal possessionof a weapon in the second degree (§ 265.03 [1] [b]; [3]), defendant contends thatthe conviction of murder in the second degree is not supported by legally sufficient evidence withrespect to the issue of his intent, and that the verdict is contrary to the weight of the evidenceregarding that issue. Initially, we note that defendant failed to preserve his legal sufficiencycontention for our review inasmuch as he failed to move for a trial order of dismissal on thatground (see People v Carncross, 14NY3d 319, 324-325 [2010]; People v Gray, 86 NY2d 10, 19 [1995]). In any event,defendant's contention lacks merit. Viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidenceis legally sufficient to support the conviction of murder in the second degree (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). "The element of intent is rarely proved 'by anexplicit expression of culpability by the perpetrator' " (People v Bueno, 18 NY3d 160,169 [2011], quoting People v Barnes, 50 NY2d 375, 381 [1980]). "It is well establishedthat a defendant's [i]ntent to kill may be inferred from [his] conduct as well as the circumstancessurrounding the crime . . . , and that a jury is entitled to infer that a defendantintended the natural and probable consequences of his acts" (People v Hough, 151 AD3d 1591, 1593 [4th Dept 2017], lvdenied 30 NY3d 950 [2017] [internal quotation marks omitted]). Here, the People presentedevidence that the victim was unarmed and killed by a single gunshot to the head, fired bydefendant at very close range, while the victim was holding groceries and beer in his hands.Consequently, we conclude that the evidence was legally sufficient to establish defendant's intentto kill the victim. In addition, viewing the evidence in light of the elements of the crime ofmurder in the second degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict with respect to that crime is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
Contrary to defendant's further contention, County Court did not err in imposing consecutivesentences on the count of murder in the second degree and the count of criminal possession of aweapon in the second degree under Penal Law § 265.03 (3). Contrary to thePeople's contention, "[a]lthough defendant . . . failed to preserve for our review hiscontention that the court erred in imposing consecutive sentences, preservation of that contentionis not required" (People vFerguson-Johnson, 55 AD3d 1340, 1340-1341 [4th Dept 2008], lv denied 11NY3d 897 [2008]; see People vHouston, 142 AD3d 1397, 1399 [4th Dept 2016], lv denied 28 NY3d 1146[2017]).
With respect to the merits, where a defendant is charged with criminal possession of aweapon pursuant to Penal Law § 265.03 (3), as well as a crime involving use of thatweapon, "[s]o long as [the] defendant knowingly unlawfully possesses a loaded firearm beforeforming the intent to cause a crime with that weapon, the possessory crime has already beencompleted, and consecutive sentencing is permissible" (People v Brown, 21 NY3d 739, 751 [2013]). Here, "the evidence[is] legally sufficient to establish that he possessed the murder weapon in the car on the way tothe shooting, and thus 'there was a completed possession, within the meaning of [section 265.03(3)], before the shooting took place' " (People v Evans, 132 AD3d 1398, 1399 [4th Dept 2015], lvdenied 26 NY3d 1087 [2015]). Defendant's contention concerning the location of the crimeas set forth in the indictment as limited by the bill of particulars does not require a differentresult, inasmuch as the bill of particulars indicated that the possession in violation of section265.03 (3) took place at a specific address, and the evidence is sufficient to establish thatdefendant possessed the weapon in a car in the parking lot at that address before he formed theintent to shoot the victim with it.
We reject defendant's contention that he was denied effective assistance of counsel based onhis attorney's failure to conduct an adequate cross-examination of certain prosecution witnesses.Contrary to defendant's contention, "[s]peculation that a more vigorous cross-examination mighthave [undermined the credibility of a witness] does not establish ineffectiveness of counsel"(People v Adams, 247 AD2d 819, 819 [4th Dept 1998], lv denied 91 NY2d 1004[1998]; see People v Black, 137AD3d 1679, 1680 [4th Dept 2016], lv denied 27 NY3d 1128 [2016], deniedreconsideration 28 NY3d 1026 [2016]; People v Bassett, 55 AD3d 1434, 1438 [4th Dept 2008], lvdenied 11 NY3d 922 [2009]). Upon review of the record, we conclude that "the evidence, thelaw, and the circumstances of [this] case, viewed in totality and as of the time of therepresentation, reveal that [defendant's] attorney provided meaningful representation" (Peoplev Baldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Smith,DeJoseph, Troutman and Winslow, JJ.