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

329
KA 11-00854
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANK WILEY, DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered February 9, 2011. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree.

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

     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 (see CPL 470.05 [2]), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 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 NY2d 137, 147; People
v Brown, 67 AD3d 1369, 1370, lv denied 14 NY3d 886).

     Contrary to defendant’s further contention, the conviction is
supported by legally sufficient evidence (see generally People v
Bleakley, 69 NY2d 490, 495). 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 NY2d 481, 489; see People v Steinberg, 79 NY2d 673, 682). 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
                                 -2-                           329
                                                         KA 11-00854

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 which a rational jury could
have found the elements of the crime proved beyond a reasonable doubt”
(People v Danielson, 9 NY3d 342, 349 [internal quotation marks
omitted]). Additionally, viewing the evidence in light of the
elements of the crime as charged to the jury (see id.), we conclude
that the verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
