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

114
KA 08-02354
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD L. VROOMAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RONALD L. VROOMAN, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered October 31, 2008. The judgment convicted
defendant, upon a jury verdict, of 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 murder in the second degree (Penal Law § 125.25
[1]). Defendant’s contention that the prosecutor erred in eliciting
testimony with respect to defendant’s invocation of the right to
counsel is not preserved for our review (see CPL 470.05 [2]; see also
People v Kithcart, 85 AD3d 1558, 1559-1560, lv denied 17 NY3d 818).
In any event, we conclude that any error with respect thereto is
“harmless beyond a reasonable doubt inasmuch as there is no reasonable
possibility that the error[] might have contributed to defendant’s
conviction” (People v Capers, 94 AD3d 1475, 1476, lv denied 19 NY3d
971 [internal quotation marks omitted]; see Kithcart, 85 AD3d at 1559-
1560; see generally People v Crimmins, 36 NY2d 230, 237). Defendant
was not denied effective assistance of counsel by defense counsel’s
failure to object to that testimony (see People v Caban, 5 NY3d 143,
152; People v Williams, 107 AD3d 1516, 1517, lv denied 21 NY3d 1047)
and, viewing the evidence, the law and the circumstances of the case,
in totality and at the time of the representation, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).

     In his pro se supplemental brief, defendant contends that the
conviction is not based on legally sufficient evidence. We reject
that contention. Here, the evidence adduced at trial establishes that
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                                                         KA 08-02354

the victim was brutally beaten and had a petechial injury in her eye
commonly associated with asphyxiation; that the victim was left to die
after the beating; that defendant’s DNA was found on the victim; that
defendant’s fingerprint was found on a cup located approximately 30
inches from the victim’s body; and that defendant admitted to the
People’s final witness his role in the “killing” of a person who
matched some of the victim’s characteristics and who was killed at
approximately the same time as the victim. Defendant challenges the
legal sufficiency of the evidence on the specific grounds that the
People failed to establish his identity as the victim’s killer and his
intent to kill the victim. Defendant’s challenge to the legal
sufficiency of the evidence with respect to intent is unpreserved for
our review (see generally People v Gray, 86 NY2d 10, 19; People v
Scott, 61 AD3d 1348, 1349, lv denied 12 NY3d 920, reconsideration
denied 12 NY3d 799). In any event, in light of the above evidence, we
conclude that both of defendant’s challenges to the legal sufficiency
of the evidence lack merit (see generally People v Bleakley, 69 NY2d
490, 495).

     Defendant contends that the verdict is against the weight of the
evidence because the testimony of the People’s final witness was
incredible. We reject that contention. “ ‘[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), and
we see no reason to disturb the jury’s resolution of those issues in
this case. Defendant also contends that the verdict is against the
weight of the evidence with respect to the issues of intent and
identification, arguing specifically that the evidence establishes
only that he had sexual contact with the victim on the night she was
killed, and not that he killed her. 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 conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). We note in particular that “intent [to kill] ‘may be inferred
from defendant’s conduct as well as the circumstances surrounding the
crime’ ” (People v Massey, 61 AD3d 1433, 1433, lv denied 13 NY3d 746;
see generally People v Geddes, 49 AD3d 1255, 1256, lv denied 10 NY3d
863).

     Finally, defendant contends in his pro se supplemental brief that
County Court erred in failing to submit the lesser included offense of
“manslaughter” to the jury. “Defendant did not ask the court to so
charge and therefore failed to preserve his contention[] for our
review” (People v Gibbs, 286 AD2d 865, 867, lv denied 97 NY2d 704; see
People v Taylor, 83 AD3d 1505, 1506, lv denied 17 NY3d 822), 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]).



Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
