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

1187
KA 13-01452
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRY L. KENNEDY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered January 19, 2012. The judgment convicted
defendant, upon a nonjury verdict, of attempted murder in the second
degree and criminal possession of stolen property in the fourth
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the facts by reversing that part convicting
defendant of criminal possession of stolen property in the fourth
degree and dismissing count four of the indictment, and as modified
the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him, upon a
nonjury trial, of attempted murder in the second degree (Penal Law
§§ 110.00, 125.25 [1]) and criminal possession of stolen property in
the fourth degree (§ 165.45 [4]), defendant contends that the verdict
is against the weight of the evidence.

     We reject defendant’s contention that the verdict is against the
weight of the evidence with respect to the attempted murder charge.
Defendant’s incriminating statements to his friends and family both
before and after his arrest manifest a clear intent to kill his
victim, and we therefore conclude that the People proved defendant’s
intent beyond a reasonable doubt (see generally People v Danielson, 9
NY3d 342, 348-349; People v Bleakley, 69 NY2d 490, 495). The evidence
further established that defendant was lying in wait with a loaded
shotgun as his intended victim walked toward his position, and it was
only through fortuitous police intervention that the murder was
avoided. Inasmuch as the victim was mere seconds from entering the
zone of danger when the police foiled the murder plot, we conclude
that defendant came “dangerously close” to completing the murder
(People v Bracey, 41 NY2d 296, 300), and the verdict is not against
                                 -2-                             1187
                                                            KA 13-01452

the weight of the evidence in that regard (see People v Naradzay, 11
NY3d 460, 467-468).

     We agree with defendant, however, that the verdict is against the
weight of the evidence with respect to the count of criminal
possession of stolen property inasmuch as the People failed to prove
that defendant knew the shotgun was stolen (Penal Law § 165.45 [4]).
Although the People submitted evidence that the shotgun had been
stolen approximately 15 months before the attempted murder and that
defendant had purchased it shortly before the attempted murder for
twenty dollars, those facts, standing alone, do not establish
defendant’s knowledge that the gun was stolen (see People v Rolland,
128 AD2d 650, 651; People v Hunt, 112 AD2d 781, 781; cf. People v
Bester, 163 AD2d 873, 873, lv denied 76 NY2d 891; People v Day, 132
AD2d 987, 987). We therefore modify the judgment accordingly.

     Finally, the sentence is not unduly harsh or severe.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
