PEOPLE v. GARCIA

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

The PEOPLE, etc., respondent, v. Anthony GARCIA, appellant.

Decided: November 27, 2007

ROBERT W. SCHMIDT, J.P., REINALDO E. RIVERA, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. Steven Banks, New York, N.Y. (Denise Fabiano of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jill Gross-Marks of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered December 3, 2003, convicting him of murder in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's argument that the evidence was legally insufficient to prove that he intended to cause the death of the victim was preserved for appellate review because he raised this issue with sufficient specificity in his motion pursuant to CPL 290.10 for a trial order of dismissal at the close of the People's case (see CPL 470.05 [2];  People v. Mendez, 34 A.D.3d 697, 824 N.Y.S.2d 416;  People v. Soto, 8 A.D.3d 683, 684, 779 N.Y.S.2d 251;  cf. People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), it was legally sufficient to establish the defendant's guilt of murder in the first degree beyond a reasonable doubt (see Penal Law § 125.27[1][a][vii] ).   There was sufficient evidence from which a rational trier of fact could have found that the defendant, with the intent to kill, shot the victim repeatedly at close range, inflicting wounds which caused his death, during the course of, and in furtherance of, a robbery (see People v. Cicchetti, 44 N.Y.2d 803, 804-805, 406 N.Y.S.2d 285, 377 N.E.2d 739;  People v. Bracey, 41 N.Y.2d 296, 300-302, 392 N.Y.S.2d 412, 360 N.E.2d 1094;  People v. Parker, 5 A.D.3d 507, 508, 772 N.Y.S.2d 584;  People v. Moradel, 278 A.D.2d 250, 251, 717 N.Y.S.2d 264).   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, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

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