Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Christopher L. SMITH, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. Christopher L. Smith, Defendant–Appellant Pro Se.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. Christopher L. Smith, Defendant–Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (§ 120.10[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention is without merit ( see People v. Green, 74 A.D.3d 1899, 1900, 903 N.Y.S.2d 844, lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821; People v. Flecha, 43 A.D.3d 1385, 842 N.Y.S.2d 656, lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we also conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Although “an acquittal would not have been unreasonable” in light of defendant's testimony ( Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), it cannot be said that the jury failed to give the evidence the weight it should be accorded in concluding that defendant possessed the requisite intent for the commission of the crimes ( see People v. Simcoe, 75 A.D.3d 1107, 1108–1109, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817). The jury “ ‘see[s] and hear[s] the witnesses[ and thus] can assess their credibility and reliability in a manner that is far superior to that of [this Court, which] must rely on the printed record’ ” ( People v. Horton, 79 A.D.3d 1614, 1615, 913 N.Y.S.2d 463, lv. denied 16 N.Y.3d 859, 923 N.Y.S.2d 421, 947 N.E.2d 1200, quoting People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61), and we perceive no reason to disturb the jury's credibility determinations.
We reject the further contention of defendant that County Court erred in denying his request for a circumstantial evidence charge. “A circumstantial evidence charge is required [only] where the evidence against a defendant is ‘wholly circumstantial’ ” ( People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951, quoting People v. Silva, 69 N.Y.2d 858, 859, 514 N.Y.S.2d 710, 507 N.E.2d 303; see People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014). Here, however, “[t]he evidence presented at trial ... consisted of both circumstantial and direct evidence, and thus a circumstantial evidence charge was not required” ( People v. Whitfield, 72 A.D.3d 1610, 899 N.Y.S.2d 705, lv. denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905; see e.g. People v. Allen, 1 A.D.3d 947, 767 N.Y.S.2d 717, lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362; People v. Goncalves, 283 A.D.2d 1005, 725 N.Y.S.2d 776, lv. denied 96 N.Y.2d 918, 732 N.Y.S.2d 635, 758 N.E.2d 661).
By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in allowing the prosecutor to question defendant concerning the underlying facts of a youthful offender adjudication ( see People v. Goodrum, 72 A.D.3d 1639, 901 N.Y.S.2d 770, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055). In any event, defendant's contention is without merit. Although it is “impermissible to use a youthful offender ... adjudication as an impeachment weapon, because ‘[those] adjudications are not convictions of a crime’ ..., the [prosecutor] may bring out ‘the illegal or immoral acts underlying such adjudications' ” ( People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444; see People v. Smikle, 82 A.D.3d 1697, 919 N.Y.S.2d 672, lv. denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104).
Contrary to defendant's further contention, the sentences imposed for attempted murder and assault are not unduly harsh or severe, particularly in view of the serious nature of the offenses and the lack of remorse displayed by defendant. In addition, “[t]he fact that defendant's sentence was greater than that of his codefendant[, who accepted a plea agreement,] does not substantiate his [contention] that he was improperly punished for going to trial” ( People v. Elwood, 80 A.D.3d 988, 990, 915 N.Y.S.2d 694, lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199).
Defendant failed to preserve for our review the contention in his pro se supplemental brief that he was deprived of a fair trial by prosecutorial misconduct during summation inasmuch as he did not object to the alleged improprieties ( see People v. Roman, 85 A.D.3d 1630, 1631–1632, 925 N.Y.S.2d 310, lv. denied 17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101). Defendant likewise failed to preserve for our review the contention in his pro se supplemental brief that the consciousness of guilt based on flight charge was improper ( see generally Whitfield, 72 A.D.3d 1610, 899 N.Y.S.2d 705). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ). We have reviewed the remaining contention of defendant in his pro se supplemental brief and conclude that it is without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.