People v. Miller

255 A.D.2d 460, 682 N.Y.S.2d 52, 1998 N.Y. App. Div. LEXIS 11980

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered November 27, 1995, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of attempted murder in the second degree beyond a reasonable doubt. The defendant’s contention that the evidence did not exclude to a moral certainty the reasonable hypothesis that he never formed the intent to cause the death of the victim is unpreserved for appellate review (see, CPL 470.05 [2]). In any event, while the “moral certainty” standard is to be utilized where proof of the entire case depends upon circumstantial evidence, it is inapplicable where, as here, the circumstantial evidence relates only to one element of the offense (see, People v Johnson, 65 NY2d 556, 561).

The court’s charge concerning accessorial liability was proper (see, Penal Law § 20.00). Rosenblatt, J. P., Miller, Thompson and Joy, JJ., concur.