People v. Cobb

• Decision Date: 30 April 2010
• Citation: 72 A.D.3d 1565,900 N.Y.S.2d 224
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles S. COBB, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 224

72 A.D.3d 1565

The PEOPLE of the State of New York, Respondent,

v.Charles S. COBB, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 30, 2010.

Kristin F. Splain, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

PRESENT: MARTOCHE, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[1] ), criminal possession of a weapon in the second degree (§ 265.03 [former (2) ] ) and criminal possession of a weapon in the third degree (§ 265.02 [former (4) ] ). Defendant failed to preserve for our review his contention that the trial evidence is legally insufficient to establish that he intended to kill the victim "inasmuch as his motion to dismiss was not specifically directed at that alleged insufficiency" ( People v. Parsons, 30 A.D.3d 1071, 1072, 816 N.Y.S.2d 271, lv. denied 7 N.Y.3d 816, 822 N.Y.S.2d 491, 855 N.E.2d 807; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, that contention lacks merit. The "[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, 834 N.Y.S.2d 510, 866 N.E.2d 456, 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462; see People v. Massey, 61 A.D.3d 1433, 877 N.Y.S.2d 589, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018; 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). The evidence, viewed 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), establishes that defendant pointed a gun at the victim from less than 20 feet away, "aimed at a part of the victim's body where death producing injuries were apt to occur," and fired twice ( People v. Caruso, 34 A.D.3d 863, 864, 823 N.Y.S.2d 287, lv. denied 8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621; see e.g. People v. Diggs, 56 A.D.3d 795, 868 N.Y.S.2d 156, lv. denied 12 N.Y.3d 757, 876 N.Y.S.2d 709, 904 N.E.2d 846; People v. German, 243 A.D.2d 647, 663 N.Y.S.2d 259, lv. denied 91 N.Y.2d 892, 669 N.Y.S.2d 6, 691 N.E.2d 1032).

Defendant failed to preserve for our review his further contention that the evidence before the grand jury was legally insufficient to establish his intent to kill the victim ( see People v. Agee, 57 A.D.3d 1486, 871 N.Y.S.2d 520, lv. denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929) and, in any event, that contention "is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence" (CPL 210.30[6]; see People v. Baker, 67 A.D.3d 1446, 889 N.Y.S.2d 345; People v. Dixon, 50 A.D.3d 1519, 856 N.Y.S.2d 383, lv.denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448). 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), 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).

Defendant contends that the admission in evidence of the tape recording of the911 telephone call constituted impermissible bolstering. That contention is not preserved for our review ( see People v. Castaneda, 192 A.D.2d 475, 597 N.Y.S.2d 595) and, in any event, it lacks merit ( see People v. Dann, 17 A.D.3d 1152, 1153, 793 N.Y.S.2d 852, lv. denied 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265; see generally People v. Buie, 86 N.Y.2d 501, 634 N.Y.S.2d 415, 658 N.E.2d 192). Contrary to the further contention of defendant, County Court did not abuse its discretion in denying his request to redact certain portions of the transcript of the 911 telephone call ( see People v. Knight, 280 A.D.2d 937, 939, 721 N.Y.S.2d 166, lv. denied 96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121; People v. Gandy, 152 A.D.2d 909, 543 N.Y.S.2d 817, lv. denied 74 N.Y.2d 896, 548 N.Y.S.2d 429, 547 N.E.2d 956). We reject the contention of defendant that the court also abused its discretion in denying his request to sequester the jury ( see CPL 310.10), inasmuch as "the law presumes that the jury ... follow[ed] the court's instructions" not to read, view or listen to any media coverage of the case ( People v. Moore, 71 N.Y.2d 684, 688, 529 N.Y.S.2d 739, 525 N.E.2d 460).

Defendant further contends that the court's instructions on the justification defense were erroneous. After defendant raised his initial objections to those instructions, the court issued curative instructions to the jury, and defendant neither made any additional requests nor objected to the curative instructions. "Under [those] circumstances, the curative instructions must be deemed to have corrected the [alleged] error to the defendant's satisfaction" ( People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370; see People v. Young, 234 A.D.2d 922, 653 N.Y.S.2d 466, lv. denied 89 N.Y.2d 1017, 658 N.Y.S.2d 255, 680 N.E.2d 629), and defendant is deemed to have " 'waived appellate review' " of his present contention ( People v. Pivnick, 277 A.D.2d 1000, 1001, 716 N.Y.S.2d 346, lv. denied 96 N.Y.2d 786, 725 N.Y.S.2d 651, 749 N.E.2d 220). In any event, the court's instructions with respect to the justification defense constituted "a correct statement of the law when viewed in [their] entirety ... and adequately conveyed to the jury 'the correct principles of law to be applied to the case' " ( People v. Bolling, 24 A.D.3d 1195, 1197, 807 N.Y.S.2d 765, affd. 7 N.Y.3d 874, 826 N.Y.S.2d 174, 859 N.E.2d 913; see People v. Lluveres, 15 A.D.3d 848, 849, 789 N.Y.S.2d 371, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159; see generally People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41). Defendant contends for the first time on appeal that the court failed to instruct the jury with respect to the use of ordinary physical force, and he therefore failed to preserve that contention for our review ( see CPL 470.05[2]; see e.g. People v. Green, 43 A.D.3d 1279, 1281, 843 N.Y.S.2d 883, lv. denied 9 N.Y.3d 1034, 852 N.Y.S.2d 19, 881 N.E.2d 1206; People v. Bonner, 256 A.D.2d 1219, 1220, 684 N.Y.S.2d 364, lv. denied 93 N.Y.2d 871, 689 N.Y.S.2d 433, 711 N.E.2d 647). 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] ).

Defendant further contends that the court erred in denying his request for a jury instruction on temporary and lawful possession of a weapon ( see CJI2d[NY] Possession: Temporary and Lawful Possession). We reject that contention. There was no reasonable view of the evidence"tending to establish that, once possession [was] obtained, the weapon [was] not ... used in a dangerous manner" ( People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372; see People v. Hayes, 51 A.D.3d 688, 858 N.Y.S.2d 242, lv. denied 11 N.Y.3d 737, 864 N.Y.S.2d 395, 894 N.E.2d 659; People v. Matos, 224 A.D.2d 326, 638 N.Y.S.2d 307, lv. denied 88 N.Y.2d 850, 644 N.Y.S.2d 696, 667 N.E.2d 346).

Although defendant contends that the court erred in denying his request for a substitution of assigned counsel, that contention is not properly before us inasmuch as the record establishes that defendant abandoned that request ( see People v. Clark, 24 A.D.3d 1225, 806 N.Y.S.2d 834, lv. denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377; People v. Hobart, 286 A.D.2d 916, 731 N.Y.S.2d 127, lv. denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402). Defendant further contends that he was denied effective assistance of counsel. To the extent that defendant's contention is based on...