Opinion
June 9, 1995
Appeal from the Jefferson County Court, Clary, J.
Present — Denman, P.J., Pine, Wesley, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conviction of manslaughter in the first degree (Penal Law § 125.20) is supported by legally sufficient evidence that the victim died as the result of a homicide rather than by accidental or natural causes and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to the contention of defendant, the People offered competent medical proof that the cause of the victim's death was "massive trauma to the head causing massive subarachnoid hemorrhage". The conflicting opinion given by defendant's medical expert presented an issue for the jury to resolve, and it cannot be said that its resolution of that issue is against the weight of the evidence (see, People v. Wentz, 147 A.D.2d 941, lv denied 73 N.Y.2d 1023).
Furthermore, the evidence is legally sufficient to establish that defendant struck the victim with intent to cause serious physical injury. The intent of defendant may be inferred from his conduct, the surrounding circumstances, and the medical evidence (see, People v. Steinberg, 79 N.Y.2d 673, 682).
Lastly, defendant has failed to preserve for our review his contention that reversal is required based upon prosecutorial misconduct (see, CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).