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

926
KA 10-02198
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL CALDWELL, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

JEFFREY S. CARPENTER, ASSISTANT DISTRICT ATTORNEY, HERKIMER (JACQUELYN
M. ASNOE OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (Patrick L.
Kirk, J.), rendered March 30, 2009. 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 fourth
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 fourth degree (§
265.01 [2]). Defendant’s contention that he was denied due process
when the People impeached a prosecution witness in violation of CPL
60.35 (3) and offered prior bad act testimony in violation of County
Court’s Ventimiglia ruling is not preserved for our review (see CPL
470.05 [2]), and we decline to exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Defendant contends that the conviction of attempted murder and
assault is not supported by legally sufficient evidence and that the
verdict is against the weight of the evidence. Defendant preserved
his contention concerning the legal sufficiency of the evidence only
insofar as he alleges that there was no evidence of his intent to
cause death or serious physical injury (see People v Gray, 86 NY2d 10,
19). 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 cause death and
serious physical injury. Defendant’s intent may be inferred from his
conduct (see People v Badger, 90 AD3d 1531, 1532, lv denied 18 NY3d
991), and his statements to the 911 operator established his intent.
The People presented evidence that defendant and the victim fought
immediately before the shooting, and that defendant retreated to his
                                 -2-                           926
                                                         KA 10-02198

house to obtain a weapon and upon returning fired several shots at the
victim. The People also presented evidence of defendant’s 911 call
after the fight, wherein he stated that emergency responders should
“[h]urry up,” that defendant was going to “shoot him,” and that the
victim would die. Viewing the evidence in light of the elements of
the crimes of attempted murder and assault 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 generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant’s contention that he was denied a fair trial based on
prosecutorial misconduct on summation is not preserved for our review
(see CPL 470.05 [2]) and, in any event, we conclude that “[a]ny
‘improprieties were not so pervasive or egregious as to deprive
defendant of a fair trial’ ” (People v Johnson, 303 AD2d 967, 968, lv
denied 100 NY2d 583). Contrary to defendant’s contention, the court
properly denied his request for a justification charge (see People v
Hall, 48 AD3d 1032, 1033, lv denied 11 NY3d 789). Viewing the record
in the light most favorable to defendant (see People v Reynoso, 73
NY2d 816, 818; People v McManus, 67 NY2d 541, 549), we conclude that
there is no reasonable view of the evidence that would permit the jury
to determine that defendant’s use of deadly physical force was
justified (see Penal Law § 35.15 [2] [a]; People v Hartman, 86 AD3d
711, 712-713, lv denied 18 NY3d 859). The sentence is not unduly
harsh or severe. We have reviewed defendant’s remaining contentions
and conclude that they are without merit.




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
