THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. IVAN LUCAS DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. IVAN LUCAS, DEFENDANT–APPELLANT.

KA 10–00201

Decided: April 20, 2012

PRESENT:  SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (JOHN P. GERKEN, JR., OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] [intentional murder] ) and criminal possession of a weapon in the second degree (§ 265.03 [3] ).   Contrary to defendant's contention, the conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Addressing first the conviction of intentional murder, we note that “ ‘[i]ntent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime’ “ (People v. Badger, 90 AD3d 1531, 1532;  see People v. Geddes, 49 AD3d 1255, 1256, lv denied 10 NY3d 863).   Here, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), we conclude that it is legally sufficient to establish defendant's intent to kill.   The People presented evidence that defendant had quarreled with the victim immediately before the shooting (see People v. Henning, 267 A.D.2d 1092, 1092, lv denied 94 N.Y.2d 903).   In addition, the shooting occurred while defendant was facing the victim and, with the encouragement of a bystander, defendant pointed a gun toward the victim from a few feet away and fired that weapon (see People v. Cobb, 72 AD3d 1565, 1565, lv denied 15 NY3d 803;  People v. Colon, 275 A.D.2d 797, 797, lv denied 95 N.Y.2d 904).   With respect to the conviction of criminal possession of a weapon, “[t]he evidence, viewed in the light most favorable to the People ․, is legally sufficient to disprove defendant's defense of temporary and lawful possession of a weapon” (People v. Miller, 259 A.D.2d 1037, lv denied 93 N.Y.2d 927;  see generally Bleakley, 69 N.Y.2d at 495).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we further conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495).  “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted] ).   Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court