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

1400
KA 07-02492
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CHRISTOPHER L. SMITH, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

CHRISTOPHER L. SMITH, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered November 19, 2007. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the second
degree, assault in the first 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 attempted murder in the second degree (Penal
Law §§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10 [1])
and criminal possession of a weapon in the second degree (§ 265.03
[3]). Defendant failed to preserve for our review his challenge to
the legal sufficiency of the evidence inasmuch as he failed to renew
his motion for a trial order of dismissal after presenting evidence
(see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In
any event, that contention is without merit (see People v Green, 74
AD3d 1899, 1900, lv denied 15 NY3d 852; People v Flecha, 43 AD3d 1385,
lv denied 9 NY3d 990; see generally People v Bleakley, 69 NY2d 490,
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 also
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495). Although “an acquittal
would not have been unreasonable” in light of defendant’s testimony
(Danielson, 9 NY3d at 348), it cannot be said that the jury failed to
give the evidence the weight it should be accorded in concluding that
defendant possessed the requisite intent for the commission of the
                                 -2-                          1400
                                                         KA 07-02492

crimes (see People v Simcoe, 75 AD3d 1107, 1108-1109, lv denied 15
NY3d 924). The jury “ ‘see[s] and hear[s] the witnesses[ and thus]
can assess their credibility and reliability in a manner that is far
superior to that of [this Court, which] must rely on the printed
record’ ” (People v Horton, 79 AD3d 1614, 1615, lv denied 16 NY3d 859,
quoting People v Lane, 7 NY3d 888, 890), and we perceive no reason to
disturb the jury’s credibility determinations.

     We reject the further contention of defendant that County Court
erred in denying his request for a circumstantial evidence charge. “A
circumstantial evidence charge is required [only] where the evidence
against a defendant is ‘wholly circumstantial’ ” (People v Guidice, 83
NY2d 630, 636, quoting People v Silva, 69 NY2d 858, 859; see People v
Daddona, 81 NY2d 990, 992). Here, however, “[t]he evidence presented
at trial . . . consisted of both circumstantial and direct evidence,
and thus a circumstantial evidence charge was not required” (People v
Whitfield, 72 AD3d 1610, lv denied 15 NY3d 811; see e.g. People v
Allen, 1 AD3d 947, lv denied 1 NY3d 594; People v Goncalves, 283 AD2d
1005, lv denied 96 NY2d 918).

     By failing to object to the court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his contention that the
court abused its discretion in allowing the prosecutor to question
defendant concerning the underlying facts of a youthful offender
adjudication (see People v Goodrum, 72 AD3d 1639, lv denied 15 NY3d
773). In any event, defendant’s contention is without merit.
Although it is “impermissible to use a youthful offender . . .
adjudication as an impeachment weapon, because ‘[those] adjudications
are not convictions of a crime’ . . ., the [prosecutor] may bring out
‘the illegal or immoral acts underlying such adjudications’ ” (People
v Gray, 84 NY2d 709, 712; see People v Smikle, 82 AD3d 1697, lv denied
17 NY3d 801).

     Contrary to defendant’s further contention, the sentences imposed
for attempted murder and assault are not unduly harsh or severe,
particularly in view of the serious nature of the offenses and the
lack of remorse displayed by defendant. In addition, “[t]he fact that
defendant’s sentence was greater than that of his codefendant[, who
accepted a plea agreement,] does not substantiate his [contention]
that he was improperly punished for going to trial” (People v Elwood,
80 AD3d 988, 990, lv denied 16 NY3d 858).

     Defendant failed to preserve for our review the contention in his
pro se supplemental brief that he was deprived of a fair trial by
prosecutorial misconduct during summation inasmuch as he did not
object to the alleged improprieties (see People v Roman, 85 AD3d 1630,
1631-1632, lv denied 17 NY3d 821). Defendant likewise failed to
preserve for our review the contention in his pro se supplemental
brief that the consciousness of guilt based on flight charge was
improper (see generally Whitfield, 72 AD3d 1610). We decline to
exercise our power to review those contentions as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
have reviewed the remaining contention of defendant in his pro se
                                 -3-                             1400
                                                            KA 07-02492

supplemental brief and conclude that it is without merit.




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
