PEOPLE v. TORRES (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered February 17, 2005, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's challenge to certain allegedly improper remarks by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05 [2];  People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017).   In any event, the challenged remarks did not deprive the defendant of a fair trial (see People v. Zivkovich, 237 A.D.2d 473, 656 N.Y.S.2d 880;  People v. Yates, 207 A.D.2d 567, 616 N.Y.S.2d 249).

 The defendant's contention that the Supreme Court committed reversible error by instructing the jury that “[a] person is presumed, by law, to intend the natural and probable consequence of his acts” (see Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39) is unpreserved for appellate review (see People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430;  People v. Tate, 200 A.D.2d 602, 602-603, 608 N.Y.S.2d 846).   In any event, the contention is without merit, as the court's charge, read as a whole, made clear that it was the jury's role to determine the defendant's intent, and that the People bore the burden of proving, beyond a reasonable doubt, that the defendant acted with the intent to kill (see People v. Green, 50 N.Y.2d 891, 893, 430 N.Y.S.2d 267, 408 N.E.2d 675, cert. denied 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223;  People v. Tate, 200 A.D.2d at 603, 608 N.Y.S.2d 846).   We note, however, that trial courts should avoid using the challenged language (see People v. Green, 50 N.Y.2d at 893, 430 N.Y.S.2d 267, 408 N.E.2d 675), and should, instead, use language similar to that recommended by the Committee on Criminal Jury Instructions (see CJI2d[NY] Culpable Mental States-Intent;  People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425).

 To the extent that the defendant's claims of ineffective assistance of counsel involve matters dehors the record, they may not be reviewed on direct appeal (see People v. Campbell, 6 A.D.3d 623, 624, 774 N.Y.S.2d 806).   Insofar as we are able to review the defendant's claims, we find that defense counsel provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see Penal Law § 70.04[3][b];  People v. Thompson, 60 N.Y.2d 513, 519, 470 N.Y.S.2d 551, 458 N.E.2d 1228;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).