PEOPLE v. McLEE

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Robert D. McLEE, Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, SMITH, AND PINE, JJ. Linda M. Campbell, Syracuse, for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him, following a jury trial, of various crimes arising out of his firing on a crowd of people outside an apartment complex, killing one person and wounding others.   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of four counts of attempted murder in the first degree (Penal Law §§ 110.00, 125.27[1][a] [viii];  [b];  see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, defendant's contention lacks merit.   The People presented evidence establishing that defendant had the requisite intent to kill or seriously injure additional persons other than his intended victim by shooting at them (see People v. Byfield, 15 A.D.3d 262, 790 N.Y.S.2d 434, lv. denied 4 N.Y.3d 884, 798 N.Y.S.2d 729, 831 N.E.2d 974).   Indeed, the intent to harm additional persons may be inferred from defendant's actions in shooting into a crowd and pursuing individuals as they entered an apartment building (see generally People v. Coleman, 296 A.D.2d 766, 745 N.Y.S.2d 320, lv. denied 99 N.Y.2d 534, 536, 752 N.Y.S.2d 594, 597, 782 N.E.2d 572, 575).   Nor is the verdict 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).

 Although defendant further contends that County Court erred in permitting the People to present evidence that he invoked his right to counsel and his right to remain silent, the People did not in fact present such evidence.   The testimony of the police officers established that defendant had not invoked his right to counsel or to remain silent and that, when he made statements to the police and agreed to provide a handwritten statement, he had been advised of his Miranda rights and had waived them (cf. People v. Sims, 135 A.D.2d 591, 592, 522 N.Y.S.2d 170, lv. denied 72 N.Y.2d 1050, 534 N.Y.S.2d 949, 531 N.E.2d 669).   Also contrary to the contention of defendant, the court did not violate Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 by admitting in evidence testimony concerning his statements in response to information from his sister.   Even assuming, arguendo, that the statement of his sister concerning his response to information received from her was implicit in the testimony of the police officers, we nevertheless conclude that the sister's statement was not offered for the truth of the matter asserted and thus that there was no Crawford violation (cf. People v. Goldstein, 6 N.Y.3d 119, 127-128, 810 N.Y.S.2d 100, 843 N.E.2d 727, cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834).   The court did not err in denying defendant's challenges for cause with respect to two prospective jurors, inasmuch as the record establishes that they both demonstrated to the court's satisfaction that their work-related concerns would not affect their ability to be fair and impartial (see generally People v. Johnson, 92 N.Y.2d 976, 978, 683 N.Y.S.2d 754, 706 N.E.2d 742).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: