Opinion
1416 KA 15–00765
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Romeo WILLIAMS, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20[1] ) and assault in the second degree (§ 120.05[12] ). The evidence at trial established that, after a night of drinking alcohol and taking recreational drugs, defendant punched a 70–year–old man in the face outside a convenience store, without any provocation. Defendant entered the store, and while there he announced that he was going back outside into the parking lot to "kick the guy in the face" and "knock [him] out." Witnesses observed as defendant kicked the victim in the face repeatedly and then fled. A bystander then approached the victim, who was "gurgling for breath." When paramedics arrived seven minutes later, the victim had no pulse. He never regained consciousness.
Defendant contends that his conviction on the count of manslaughter in the first degree is based on legally insufficient evidence of intent to cause serious physical injury. Preliminarily, contrary to the People's assertion, defendant preserved his contention for our review inasmuch as his motion for a trial order of dismissal was " ‘specifically directed’ at the alleged error" ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Nevertheless, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). "[A] defendant may be presumed to intend the natural and probable consequences of his [or her] actions" ( People v. Meacham, 151 A.D.3d 1666, 1668, 57 N.Y.S.3d 279 [4th Dept. 2017], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] [internal quotation marks omitted] ), and "the natural and probable consequence of repeatedly [striking] a defenseless man in the face is that he will sustain a serious physical injury within the meaning of Penal Law § 10.00(10)" ( People v. Williams, 94 A.D.3d 1452, 1452, 942 N.Y.S.2d 845 [4th Dept. 2012], lv denied 19 N.Y.3d 978, 950 N.Y.S.2d 361, 973 N.E.2d 771 [2012] ; see People v. Mahoney, 6 A.D.3d 1104, 1104, 776 N.Y.S.2d 402 [4th Dept. 2004], lv denied 3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575 [2004] ). Furthermore, it is well settled that "[a]n intoxicated person can form the requisite criminal intent to commit a crime, and it is for the trier of fact to decide if the extent of the intoxication acted to negate the element of intent" ( People v. Gonzalez, 6 A.D.3d 457, 457, 773 N.Y.S.2d 889 [2d Dept. 2004], lv. denied 2 N.Y.3d 799, 781 N.Y.S.2d 299, 814 N.E.2d 471 [2004] ; see People v. Principio, 107 A.D.3d 1572, 1573, 966 N.Y.S.2d 801 [4th Dept. 2013], lv denied 22 N.Y.3d 1090, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ).
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 [2007] ), we further 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 ).
Defendant failed to preserve for our review his contention that he was denied a fair trial based on prosecutorial misconduct during summation (see People v. Santos, 151 A.D.3d 1620, 1621–1622 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 86 N.E.3d 575 [2017] ), 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[6][a] ). Furthermore, the evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defense counsel provided defendant with meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, the sentence is not unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.