People v. Le

Nov 13, 2000
Versions:277 A.D.2d 1036
716 N.Y.S.2d 189
2000 N.Y. App. Div. LEXIS 11557

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). Defendant failed to preserve for our review his contention that the identification evidence is legally insufficient to support the conviction (see, People v Gray, 86 NY2d 10, 19). In any event, the victim’s identification of defendant is legally sufficient to establish that defendant was the perpetrator (see, People v Rivera, 275 AD2d 802; see also, People v Lambert, 272 AD2d 413, lv denied 95 NY2d 867). Also contrary to defendant’s contention, the evidence is legally sufficient to establish defendant’s intent to kill. There is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion that, when defendant swung the machete at the victim, defendant did so with an intent to kill (see, People v Bleakley, 69 NY2d 490, 495). Contrary to defendant’s contention, the People need not establish that defendant had a motive to kill the victim (see, People v Hales, 272 AD2d 984).

We also reject defendant’s contention that the verdict is against the weight of the evidence. Although a different finding would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see, People v Bleakley, supra, at 495). The jury was entitled to disbelieve the testimony of defendant’s brother, who attempted to provide defendant with an alibi (see, People v Toledo, 270 AD2d 805, lv denied 95 NY2d 858; see also, People v Burks, 227 AD2d 905, lv denied 88 NY2d 981).

Defendant further contends that errors in Supreme Court’s jury charge require reversal. We disagree. Viewed as a whole, the court’s charge on identification “adequately conveyed to the jury the proper legal standards to be applied” (People v Nelson, 266 AD2d 317, lv denied 94 NY2d 865; see, People v Coleman, 70 NY2d 817, 819). Nor was the court required to inform the jury that it could render a partial verdict. After a short period of deliberations, the jury asked the court what would happen if they were unable to reach a unanimous verdict on one count. A *1037court has three options when a jury indicates its inability to agree on one or more charges (see, CPL 310.70 [1]; see also, 1 CJI[NY] 42.62, at 1021). Contrary to defendant’s contention, where, as here, the court is satisfied that there is a reasonable possibility of ultimate agreement, the court may refuse to accept a partial verdict and may order the jury to resume its deliberations on the entire case (see, CPL 310.70 [1] [b] [ii]; see also, 1 CJI[NY] 42.62, at 1023-1024). Furthermore, the court properly administered an Allen charge to the jury (see, Allen v United States, 164 US 492), which was neither unbalanced nor coercive (see, People v Woods, 262 AD2d 668, 668-669, lv denied 94 NY2d 831).

We further reject the contention of defendant that he was denied a.fair trial based on prosecutorial misconduct. The alleged misconduct did not deny defendant due process of law (see, People v Hess, 234 AD2d 925, lv denied 90 NY2d 1011; People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711). Defendant failed to preserve for our review his contention that there were errors in the interpreter’s translation (see, People v Smith, 197 AD2d 373, lv denied 82 NY2d 903; People v Hatzipavlou, 175 AD2d 969, lv denied 79 NY2d 827), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Attempted Murder, 2nd Degree.) Present — Pine, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.