               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).
                                 -3-                           776
                                                         KA 11-00058

Finally, the sentence is not unduly harsh or severe.




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