People v. Wiley

• Decision Date: 22 March 2013
• Citation: 104 A.D.3d 1314,2013 N.Y. Slip Op. 01968,960 N.Y.S.2d 841
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank WILEY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1314

960 N.Y.S.2d 841

2013 N.Y. Slip Op. 01968

The PEOPLE of the State of New York, Respondent,

v.Frank WILEY, Defendant–Appellant.

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

March 22, 2013.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Seth T. Molisani of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), defendant correctly concedes that he failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct on summation ( seeCPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). We also reject defendant's contention that he was denied effective assistance of counsel based on defense counsel's failure to object to the alleged prosecutorial misconduct on summation. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;People v. Brown, 67 A.D.3d 1369, 1370, 888 N.Y.S.2d 819,lv. denied14 N.Y.3d 886, 903 N.Y.S.2d 774, 929 N.E.2d 1009).

Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We note in particular the well-established principle that “[i]ntent, like any other element of a crime, may be proved by circumstantial evidence” ( People v. Ozarowski, 38 N.Y.2d 481, 489, 381 N.Y.S.2d 438, 344 N.E.2d 370;see People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845). In this case, the People established through the testimony of the victim and the eyewitness that defendant had the requisite intent. Although the victim did not see defendant strike him with the mug, the victim testified that defendant was next to him when he felt the impact from the mug. Also, the eyewitness testified that he saw defendant swing the mug at the victim. We thus conclude that, viewing the evidence in the light most favorable to the People, “there is a valid line of reasoning and permissible inferences from...