PEOPLE v. MAHONEY

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Dale MAHONEY, Defendant-Appellant.

Decided: April 30, 2004

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND LAWTON, JJ. Edward J. Nowak, Public Defender, Rochester (Drew R. Du Brin of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of manslaughter in the first degree (Penal Law § 125.20[1] ).   Defendant contends that the verdict is against the weight of the evidence because, while he admittedly intended to strike the victim, he did not intend to cause serious physical injury.   We reject defendant's contention.   A defendant may be presumed to intend the natural and probable consequences of his actions (see People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425;  People v. Angelo M., 231 A.D.2d 925, 647 N.Y.S.2d 895, lv. denied 89 N.Y.2d 862, 653 N.Y.S.2d 285, 675 N.E.2d 1238, 89 N.Y.2d 1087, 660 N.Y.S.2d 381, 682 N.E.2d 982), and “[i]ntent may be ‘inferred from the totality of conduct of the accused’ ” (People v. Mike, 283 A.D.2d 989, 989, 724 N.Y.S.2d 389, lv. denied 96 N.Y.2d 904, 730 N.Y.S.2d 802, 756 N.E.2d 90).   Here, several witnesses testified that the victim fell to the ground as a result of the first blows inflicted by defendant and that defendant repeatedly kicked the victim in the head as he lay defenseless.  “[T]he eyewitness accounts of defendant's ․ fatal beating of the victim, coupled with the medical testimony, clearly established that the defendant intended to cause serious physical injury to the victim” (People v. Figueroa, 143 A.D.2d 767, 767, 533 N.Y.S.2d 472, lv. denied 73 N.Y.2d 855, 537 N.Y.S.2d 501, 534 N.E.2d 339), and thus it cannot be said that the verdict is 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).   Also contrary to defendant's contention, the sentence is neither unduly harsh nor severe.   Finally, there is no merit to the remaining contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: