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

511
KA 10-00201
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

IVAN LUCAS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JOHN P. GERKEN, JR.,
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Shirley
Troutman, J.), rendered January 26, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon 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 murder in the second degree (Penal Law § 125.25
[1] [intentional murder]) and criminal possession of a weapon in the
second degree (§ 265.03 [3]). Contrary to defendant’s contention, the
conviction is supported by legally sufficient evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Addressing first the conviction
of intentional murder, 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; see
People v Geddes, 49 AD3d 1255, 1256, lv denied 10 NY3d 863). 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 had quarreled with the victim
immediately before the shooting (see People v Henning, 267 AD2d 1092,
1092, lv denied 94 NY2d 903). In addition, the shooting occurred
while defendant was facing the victim and, with the encouragement of a
bystander, defendant pointed a gun toward the victim from a few feet
away and fired that weapon (see People v Cobb, 72 AD3d 1565, 1565, lv
denied 15 NY3d 803; People v Colon, 275 AD2d 797, 797, lv denied 95
NY2d 904). With respect to the conviction of criminal possession of a
weapon, “[t]he evidence, viewed in the light most favorable to the
People . . ., is legally sufficient to disprove defendant’s defense of
temporary and lawful possession of a weapon” (People v Miller, 259
                                 -2-                           511
                                                         KA 10-00201

AD2d 1037, lv denied 93 NY2d 927; see generally Bleakley, 69 NY2d at
495).

     Viewing the evidence in light of the elements of the crimes 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”
(People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]). Finally, the sentence is not
unduly harsh or severe.




Entered:   April 20, 2012                      Frances E. Cafarell
                                               Clerk of the Court
