         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1479
KA 12-01220
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERICA L. MORELAND, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered February 25, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree.

     It is hereby ORDERED that the appeal from the judgment insofar as
it imposed sentence is unanimously dismissed and the judgment is
affirmed.

     Memorandum: In appeal No. 2, defendant appeals from a judgment
convicting her following a jury trial of assault in the second degree
(Penal Law § 120.05 [2]) for physically injuring the victim by kicking
her with a stiletto boot and, in appeal No. 1, she appeals from the
subsequent resentence.

     Addressing appeal No. 2 first, we note that defendant failed to
preserve for our review her contention that the prosecutor engaged in
misconduct by failing to provide a sufficient notice of intent to
introduce Molineux evidence (see CPL 470.05 [2]; see also People v
Nappi, 83 AD3d 1592, 1594, lv denied 17 NY3d 820). In any event, that
contention lacks merit inasmuch as the alleged misconduct “did not
cause[] such substantial prejudice to the defendant that [she] has
been denied due process of law” (People v Scott, 78 AD3d 1531, 1532,
lv denied 17 NY3d 801 [internal quotation marks omitted]). Contrary
to defendant’s further contention, we conclude that she received
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147). “The alleged instances of ineffective assistance concerning
defense counsel’s failure to make various objections [or certain
motions or requests] are based largely on [defendant’s] hindsight
disagreements with defense counsel’s trial strategies, and defendant
failed to meet [her] burden of establishing the absence of any
legitimate explanations for those strategies” (People v Douglas, 60
                                 -2-                          1479
                                                         KA 12-01220

AD3d 1377, 1377, lv denied 12 NY3d 914 [internal quotation marks
omitted]).

     Additionally, although defendant moved to dismiss the indictment
at the close of the People’s case based on the alleged legal
insufficiency of the evidence, she failed to renew her motion after
presenting evidence and thus failed to preserve for our review her
present contention that the evidence is legally insufficient to
establish her intent to cause physical injury (see People v
Diefenbacher, 21 AD3d 1293, 1294, lv denied 6 NY3d 775). In any
event, 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 that defendant possessed the requisite
intent.

     Moreover, viewing the evidence in light of the element of intent
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict with respect to that element is not against
the weight of the evidence. “A defendant may be presumed to intend
the natural and probable consequences of his [or her] actions . . . ,
and [i]ntent may be inferred from the totality of conduct of the
accused” (People v Mahoney, 6 AD3d 1104, 1104, lv denied 3 NY3d 660
[internal quotation marks omitted]; see generally People v Badger, 90
AD3d 1531, 1532, lv denied 18 NY3d 991). The victim and defendant
both testified that they were engaged in a physical altercation and
were intentionally striking at each other with their fists. Defendant
testified that, during the altercation, she kicked her stiletto boot
in the direction of the victim. Although defendant testified that she
did not intend to kick the victim, that testimony is belied by her
actions. Thus, “it cannot be said that the jury failed to give the
evidence the weight that it should be accorded” (People v Mike, 283
AD2d 989, 989, lv denied 96 NY2d 904).

     With respect to appeal No. 1, we conclude that the sentence
imposed at resentencing is not unduly harsh or severe.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
