SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

776 

KA 11-00058 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JUAN LOPEZ, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County

(Christopher J. Burns, J.), rendered December 7, 2010. The judgment

convicted defendant, upon a jury verdict, of attempted murder in the

second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

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]). Contrary to defendant’s contention, the

conviction is supported by legally sufficient evidence (see generally

People v Bleakley, 69 NY2d 490, 495). With respect to the issue of

intent, we note that “ ‘[i]ntent to kill may be inferred from

defendant’s conduct as well as the circumstances surrounding the

crime’ ” (People v Badger, 90 AD3d 1531, 1532, lv denied 18 NY3d 991;

see People v Cobb, 72 AD3d 1565, 1565, lv denied 15 NY3d 803). Here,

viewing the evidence in the light most favorable to the People (see

People v Contes, 60 NY2d 620, 621), we conclude that it is legally

sufficient to establish defendant’s intent to kill. The People

presented evidence that defendant and the victim quarreled immediately

before the shooting (see People v Lucas, 94 AD3d 1441, 1441; People v

Vigliotti, 270 AD2d 904, 904-905, lv denied 95 NY2d 839, rearg denied

95 NY2d 970; People v Henning, 267 AD2d 1092, lv denied 94 NY2d 903),

and that defendant was only a few feet away from the victim when

defendant pointed a gun at him and then fired that weapon (see Lucas,

94 AD3d at 1441; Cobb, 72 AD3d at 1565; Vigliotti, 270 AD2d at 904-

905). Viewing the evidence in light of the elements of the crime as

charged to the jury (see People v Danielson, 9 NY3d 342, 349), we

further conclude that the verdict is not against the weight of the

evidence (see Bleakley, 69 NY2d at 495). “[R]esolution of issues of

credibility, as well as the weight to be accorded to the evidence

presented, are primarily questions to be determined by the jury”
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KA 11-00058 

(People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942

[internal quotation marks omitted]). 

Contrary to defendant’s further contention, we conclude that

Supreme Court properly denied his request for a missing witness charge

with respect to the victim’s cousin and friend, respectively. “ ‘The

request, made after the close of the proof, was untimely’ ” (People v

Garrido-Valdez, 299 AD2d 858, 859, lv denied 99 NY2d 614; see People v

Garner, 52 AD3d 1329, 1330, lv denied 11 NY3d 788). Defendant failed

to preserve for our review his contention that he was deprived of a

fair trial based on prosecutorial misconduct during summation (see

People v McEathron, 86 AD3d 915, 916; People v Lyon, 77 AD3d 1338,

1339, lv denied 15 NY3d 954) and, in any event, that contention is

without merit. To the extent that the prosecutor referred to the

defense’s failure to “contradict” the proof offered by the People and

to the theories of the defense as a “distraction” and “nonsense,” we

conclude that such conduct, although improper, was not so egregious as

to deprive defendant of a fair trial (see People v Carr, 59 AD3d 945,

946, affd 14 NY3d 808; see also McEathron, 86 AD3d at 916-917; Lyon,

77 AD3d at 1339). We reject defendant’s contention that the People

misstated the law on summation, and we note in any event that the

court instructed the jury that it should accept the law as charged by

the court (see generally People v Barnes, 80 NY2d 867, 868). The

remaining instances of alleged prosecutorial misconduct on summation

were “ ‘either a fair response to defense counsel’s summation or fair

comment on the evidence’ ” (People v Green, 60 AD3d 1320, 1322, lv

denied 12 NY3d 915; see McEathron, 86 AD3d at 916; Lyon, 77 AD3d at

1339).

We also reject defendant’s contention that he was denied

effective assistance of counsel. Defendant contends that he received

ineffective assistance based on his trial counsel’s consent to a

mistrial after a jury was selected and sworn in the first trial. We

agree with defendant that, by consenting to a mistrial at that stage

of the proceedings, defense counsel waived any claim of double

jeopardy and foreclosed any challenge to the necessity of declaring a

mistrial (see generally People v Catten, 69 NY2d 547, 553-554; People

v Ferguson, 67 NY2d 383, 387-388). Nevertheless, we reject

defendant’s contention that he was thereby denied effective assistance

of counsel inasmuch as he failed to “ ‘demonstrate the absence of

strategic or other legitimate explanations’ for counsel’s allegedly

deficient conduct” (People v Caban, 5 NY3d 143, 152). We also reject

defendant’s contention that he was denied effective assistance of

counsel based on the failure of defense counsel to object to the

allegedly improper comments made by the prosecutor on summation. As

previously noted herein, “defendant was not denied a fair trial by

[the prosecutor’s improper commentary on summation relating to the

defense], and the remaining instances of alleged prosecutorial

misconduct on summation did not in fact constitute prosecutorial

misconduct” (Lyon, 77 AD3d at 1339; see People v Hill, 82 AD3d 1715,

1716, lv denied 17 NY3d 806; see generally Caban, 5 NY3d at 152). 
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KA 11-00058 

Finally, the sentence is not unduly harsh or severe. 

Entered: June 15, 2012 Frances E. Cafarell

Clerk of the Court