               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

121
KA 10-01370
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

ADAM J. HAMILTON, DEFENDANT-APPELLANT.


PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.

ADAM J. HAMILTON, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered May 24, 2010. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the first
degree (two counts), attempted murder in the second degree and
aggravated criminal contempt.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts of attempted murder in the first
degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]; [b]) and one count
each of attempted murder in the second degree (§§ 110.00, 125.25 [1])
and aggravated criminal contempt (§ 215.52 [1]). Defendant contends
that County Court erred in denying his request to charge the jury on
attempted murder in the second degree as a lesser included offense of
one of the counts of attempted murder in the first degree. We
conclude that defendant waived his contention by withdrawing his
request for that charge (see People v Gomez, 297 AD2d 388; People v
Hernandez, 297 AD2d 389).

     Defendant further contends that the court erred in allowing a
police investigator, whom we note had extensive training regarding
crime scene reconstruction, to testify with respect to possible bullet
trajectories because he was not qualified and usurped the jury’s fact-
finding function. That contention is unpreserved for our review
inasmuch as defendant failed to object to the investigator’s testimony
on those grounds (see generally People v Osuna, 65 NY2d 822, 824;
People v Smith, 24 AD3d 1253, lv denied 6 NY3d 818). In any event,
“[i]t is well established that the admissibility and scope of expert
testimony is committed to the sound discretion of the trial court”
(People v Fish, 235 AD2d 578, 579, lv denied 89 NY2d 1092; see People
                                  -2-                          121
                                                         KA 10-01370

v Cronin, 60 NY2d 430, 433). Where a police investigator has
sufficient “practical experience . . ., his [or her] lack of formal
education in ballistics and trajectories” may not disqualify the
investigator from testifying with respect thereto (People v
Brockenshire, 245 AD2d 1065, 1065-1066, lv denied 91 NY2d 940). We
further conclude that the court properly admitted in evidence the
testimony of the People’s expert reconstruction witness, inasmuch as
it was based on his specialized knowledge and was helpful in aiding
the jury to reach its verdict (see People v Brown, 97 NY2d 500, 505;
Cronin, 60 NY2d at 432-433).

     We reject defendant’s contention that the treating physician of
one of the victims should not have been permitted to testify that a
projectile from a shotgun caused the victim’s injuries. The physician
testified that he has been employed as a trauma surgeon since 1991, is
board certified in critical care and general surgery and has seen and
treated several hundred patients with gunshot wounds. Consequently,
we conclude that the court properly determined that the physician had
“the requisite skill, training, education, knowledge or experience” to
provide a reliable opinion (Matott v Ward, 48 NY2d 455, 459; see
People v Geraci, 254 AD2d 522, 524). We reject defendant’s further
contention in his main and pro se supplemental briefs that the court
erred in ordering that the sentences imposed for attempted murder in
the first degree run consecutively to each other. “[W]here, as here,
separate acts are committed against different victims during the same
criminal transaction, the court may properly impose consecutive
sentences in the exercise of its discretion” (People v Jones, 79 AD3d
1773, 1774, lv denied 16 NY3d 832). The sentence is not unduly harsh
or severe.

     Defendant’s remaining contentions are raised in his pro se
supplemental brief. We reject his contention that the court erred in
refusing to charge assault in the second degree (Penal Law § 120.05
[2]) as a lesser included offense of attempted murder in the second
degree (see People v Hymes, 70 AD3d 1371, 1372-1373, lv denied 15 NY3d
774; see generally People v Green, 56 NY2d 427, 430-432, rearg denied
57 NY2d 775). The majority of instances cited by defendant in support
of his further contention that he was denied effective assistance of
counsel involve matters outside the record and thus must be raised by
way of a motion pursuant to CPL article 440 (see People v Russell, 83
AD3d 1463, 1465, lv denied 17 NY3d 800), and we conclude that
defendant otherwise received meaningful representation (see generally
People v Baldi, 54 NY2d 137, 147). Defendant’s remaining contentions
are unpreserved for our review (see CPL 470.05 [2]), and we decline to
exercise our power to review them as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     All concur except GORSKI, J., who is not participating.



Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
