Summary
holding that there was sufficient evidence to support a conviction of murder in the second degree where the evidence showed that the defendant "cocked the shotgun, turned to his left, pointed the shotgun at a bystander and shot him at relatively close range, striking him in the torso"
Summary of this case from Cabrera v. New YorkOpinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Cyon BADGER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a nonjury verdict of murder in the second degree (Penal Law § 125.25[1] ) and attempted murder in the second degree (§§ 110.00, 125.25[1] ), defendant contends that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Addressing first the crime of attempted murder in the second degree, we note that such crime “is committed when, with the intent to cause the death of another person, one engages in conduct which tends to effect commission of that crime ... Where those elements converge, an attempted murder has occurred, regardless of whether the defendant has killed or even injured his or her intended target” ( People v. Fernandez, 88 N.Y.2d 777, 783, 650 N.Y.S.2d 625, 673 N.E.2d 910; see §§ 110.00, 125.25[1]; People v. Molina, 79 A.D.3d 1371, 1375, 914 N.Y.S.2d 331, lv. denied 16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202). It is well established that “[i]ntent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime” ( People v. Price, 35 A.D.3d 1230, 1231, 825 N.Y.S.2d 868, lv. denied 8 N.Y.3d 919, 926, 834 N.Y.S.2d 510, 516, 866 N.E.2d 456, 462; see People v. Geddes, 49 A.D.3d 1255, 1256, 856 N.Y.S.2d 336, lv. denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252). Here, the trial testimony and defendant's post-arrest statement to the police established that, after a physical altercation with a bouncer at a restaurant, defendant retrieved a shotgun from his apartment, loaded the shotgun, and approached the bouncer outside the restaurant with the shotgun drawn and pointed at the bouncer. Although defendant asserted in his statement that he intended only to injure but not to kill the bouncer, several eyewitnesses testified that defendant approached the bouncer with the shotgun trained on the bouncer, that he cocked the shotgun while standing directly in front of the bouncer, and that he attempted to fire the shotgun at close range. The shotgun misfired, however, and a shell struck a bystander in the arm. The bouncer fled inside the restaurant.
With respect to the crime of murder in the second degree of which defendant was convicted, “[a]lthough a finding that defendant did not intend to kill the victim[ ] would not have been unreasonable ..., it cannot be said that County Court, which saw and heard the witnesses and thus was able to assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record, failed to give the evidence the weight it should be accorded” ( People v. Simcoe, 75 A.D.3d 1107, 1108, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 [internal quotation marks omitted]; see generally Molina, 79 A.D.3d at 1375–1376, 914 N.Y.S.2d 331; People v. Wallace, 8 A.D.3d 753, 755–756, 777 N.Y.S.2d 817, lv. denied 3 N.Y.3d 682, 784 N.Y.S.2d 21, 817 N.E.2d 839). The trial testimony established that after the bouncer fled, defendant “turned and shot at the first person that he saw.” Specifically, the record reflects that, after the bouncer had retreated into the restaurant, defendant again cocked the shotgun, turned to his left, pointed the shotgun at a bystander and shot him at relatively close range, striking him in the torso. Then, according to one witness, defendant spun around and yelled, “[a]nybody else want to get shot?”
Finally, contrary to defendant's further contention, we conclude that the sentence is not unduly harsh or severe in light of the circumstances of the crimes and defendant's criminal history, which includes several violent offenses.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.