Opinion
March 10, 1989
Appeal from the Monroe County Court, Connell, J.
Present — Callahan, J.P., Doerr, Denman, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Viewing the proof in the light most favorable to the People (People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), we conclude that the evidence was legally sufficient to support the jury's determination that defendant intended to cause the victim's death. Although the mere fact that the victim was shot is not sufficient (cf., People v. Marrero, 67 A.D.2d 951), intent may be inferred from the nature of defendant's conduct in the context of the surrounding circumstances (People v. Horton, 18 N.Y.2d 355, 359, cert denied 387 U.S. 934). In this case, the defendant purposefully raised, aimed and fired a shotgun at the victim's back from fairly close range, went inside the house where he was staying, told an elderly tenant that he had killed the victim, and threatened to kill the tenant. The People presented sufficient evidence regarding defendant's intent to raise a factual issue for the jury's consideration.
The trial court correctly denied defendant's pretrial motion to dismiss the indictment upon the ground of lack of specificity. The indictment expressly alleged that defendant acted with an intent to cause death, referring to Penal Law §§ 110.00 and 125.25, and thus was not defective simply because it failed to refer specifically to the subdivision of section 125.25 claimed to have been violated (see, People v. Morris, 61 N.Y.2d 290, 293).
Defendant's challenge to the entire jury panel was properly denied. No written motion was submitted, and defendant made no claim that the procedures set forth in the Judiciary Law were violated (CPL 270.10). We further conclude that the court did not err in denying defendant's motion for a new trial. The claimed newly discovered evidence would have been cumulative, impeaching or contradictory of other testimony and was not of such nature that it probably would have changed the result upon a new trial (People v. Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950; People v. Latella, 112 A.D.2d 321, lv denied 65 N.Y.2d 983).
We reject defendant's claim that the second felony offender statute (Penal Law § 70.06) is unconstitutional because the 10-year period is measured from the date of sentencing on the prior felony rather than the date the crime was committed (People v. McNeill, 133 A.D.2d 506, 507, lv denied 70 N.Y.2d 934; People v. McGill, 132 A.D.2d 846, lv denied 70 N.Y.2d 801). We have reviewed defendant's remaining claims and find them to be without merit.