PEOPLE v. JONES

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

The PEOPLE, etc., Respondent, v. William JONES, Appellant.

Decided: October 14, 2003

FRED T. SANTUCCI, J.P., SONDRA MILLER, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Lynn W.L. Fahey, New York, NY, (Steven R. Bernhard of counsel), for appellant. William L. Murphy, District Attorney, Staten Island, NY, (Karen F. McGee and Daniela Conti-Maiorana of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered July 28, 1999, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the People failed to prove by legally sufficient evidence that he intended to cause the victim's death is unpreserved for appellate review as he failed to specifically raise this claim in his motion for a trial order of dismissal (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Bedford, 296 A.D.2d 553, 745 N.Y.S.2d 695;  People v. Ruiz, 211 A.D.2d 829, 622 N.Y.S.2d 97).   Moreover, his post-trial motion to set aside the verdict was insufficient to preserve the legal sufficiency of the evidence for appellate review (see People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Slavin, 299 A.D.2d 499, 749 N.Y.S.2d 738;  People v. Palompelli, 296 A.D.2d 557, 745 N.Y.S.2d 704).   In any event, 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), we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt (see Penal Law § 125.25[1];  People v. Robertson, 302 A.D.2d 956, 755 N.Y.S.2d 167, lv. denied 100 N.Y.2d 542, 763 N.Y.S.2d 8, 793 N.E.2d 422).   The defendant's intent to kill was manifest by his act of repeatedly firing at the vehicle which he knew was occupied by the victim and three other passengers-one of whom had just assaulted the defendant-at close range (see People v. Hogan, 219 A.D.2d 672, 631 N.Y.S.2d 405;  People v. Nance, 175 A.D.2d 185, 572 N.Y.S.2d 335;  People v. Culpepper, 118 A.D.2d 866, 500 N.Y.S.2d 350).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5] ).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

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