PEOPLE v. FORSYTHE (2024)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him, following a nonjury trial, of one count of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Defendant and three other men pursued the victim, and one of the other men attempted to punch the victim, before defendant produced a semiautomatic pistol and fired three or four shots, striking the victim in the left arm. The encounter was captured on several surveillance videos.

Defendant contends that the evidence is legally insufficient to establish that he intended to kill the victim. We reject that contention. “It is well established that [i]ntent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime” (People v. Torres, 136 A.D.3d 1329, 1330, 24 N.Y.S.3d 467 [4th Dept. 2016] [internal quotation marks omitted]), and, here, according to the evidence at trial, defendant pursued the victim—who was retreating—for several minutes before defendant produced a firearm and fired three or four shots at close range (see generally People v. Holmes, 129 A.D.3d 1692, 1694, 13 N.Y.S.3d 720 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015]).

After viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that “ ‘there is a valid line of reasoning and permissible inferences from which a rational [finder of fact] could have found’ ” that defendant intended to kill the victim (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes in this nonjury trial (see id.), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

We likewise reject defendant's contention that defense counsel was ineffective for failing to request that the lesser included offense of attempted assault in the second degree be charged. To prevail on a claim of ineffective assistance of counsel, defendant has the burden to show that he was “ ‘deprived of a fair trial by less than meaningful representation’ ” (People v. Mendoza, 33 N.Y.3d 414, 418, 104 N.Y.S.3d 38, 128 N.E.3d 165 [2019]; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]). “As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance” (People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]). Here, defendant failed to meet his burden of establishing that defense counsel's failure to request the lesser included charge was “ ‘other than an acceptable all-or-nothing defense strategy’ ” to be acquitted of the top count (People v. Collins, 167 A.D.3d 1493, 1498, 90 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 191, 122 N.E.3d 1104 [2019]; see People v. McFadden, 161 A.D.3d 1570, 1571, 76 N.Y.S.3d 734 [4th Dept. 2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 432, 108 N.E.3d 506 [2018]).

Finally, contrary to defendant's contention, his sentence is not unduly harsh or severe.