Opinion
KA 01-01964.
November 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Forma, J.), entered July 26, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant-Appellant.
Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25) and two counts of robbery in the first degree (§ 160.15 [1], [2]). The contention of defendant that he was denied a fair trial by Supreme Court's examination of witnesses and other conduct during trial is not preserved for our review ( see People v. Manigault, 297 A.D.2d 754, lv denied 99 N.Y.2d 583; People v. Hanks, 292 A.D.2d 875; People v. Hartzog, 263 A.D.2d 492, lv denied 93 N.Y.2d 1019; People v. Fauntleroy, 258 A.D.2d 664, 665, lv denied 93 N.Y.2d 924). In any event, the court's conduct did not deny defendant a fair trial ( see Fauntleroy, 258 A.D.2d at 665). The court's intervention was appropriate "to clarify the issues and to facilitate the orderly and expeditious progress of the proceedings" ( id.; see People v. Yut Wai Tom, 53 N.Y.2d 44, 55-58).
Defendant further contends that there is insufficient circumstantial evidence to support the conviction and that he established the affirmative defense to felony murder by a preponderance of the evidence as a matter of law. We disagree. Although there is no direct evidence of defendant's intent to commit the robbery, it is well settled that "[i]ntent may be inferred from conduct as well as the surrounding circumstances" ( People v. Steinberg, 79 N.Y.2d 673, 682). Viewing the evidence in the light most favorable to the People, we conclude that there is a "valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the fact finder" ( People v. Williams, 84 N.Y.2d 925, 926; see People v. Scavone, 284 A.D.2d 928, 929, lv denied 96 N.Y.2d 942; see also People v. Alexander, 75 N.Y.2d 979), i.e., that defendant knowingly participated in the robbery and shared his accomplices' intent ( see People v. Horsey, 304 A.D.2d 852, 854). The jury properly rejected as incredible the defense theory that defendant had no reasonable ground to believe either that one of his accomplices was armed with a deadly weapon or that the accomplice intended to engage in conduct likely to result in serious physical injury or death (see Penal Law § 125.25[c], [d]; People v. Thomas, 298 A.D.2d 187, 187-188, lv denied 99 N.Y.2d 585).
The court properly denied defendant's motion for severance because defendant failed to show good cause for severance ( see CPL 200.40; People v. Boatman, 147 A.D.2d 912). The defense of defendant did not conflict with that of his codefendant, inasmuch as both denied having the requisite intent to commit the robbery ( see People v. Reed, 236 A.D.2d 866, lv denied 89 N.Y.2d 1099). Moreover, defendant failed to show that undue or unfair prejudice would result from the joint trial ( see People v. Cotton, 237 A.D.2d 943, lv denied 90 N.Y.2d 857; People v. Hamilton, 174 A.D.2d 633, lv denied 78 N.Y.2d 966), and there was no "`injustice or impairment of substantial rights unseen at the beginning'" ( People v. Cruz, 66 N.Y.2d 61, 69, revd on other grounds 481 U.S. 186).
Defendant failed to preserve for our review his contention regarding the circumstantial evidence charge given by the court ( 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 470.15 [6][a]). The court properly denied defendant's request for a missing witness charge because defendant failed to show that the witnesses' testimony would have been favorable to the People ( see People v. Thomas, 300 A.D.2d 1034, 1035, lv denied 99 N.Y.2d 633; see generally People v. Gonzalez, 68 N.Y.2d 424, 427). Finally, the sentence is neither unduly harsh nor severe.