People v. Wallace

217 A.D.2d 918, 630 N.Y.S.2d 439, 1995 N.Y. App. Div. LEXIS 8337

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of, inter alia, murder in the second degree. Defendant argues that the evidence is insufficient to prove that he intended to kill the victim. He argues, in the alternative, that the verdict is against the weight of the evidence.

The victim’s death was caused by manual strangulation. Although intent to kill may not be inferred from the mere fact of killing (People v Marrero, 67 AD2d 951), intent "may be inferred from conduct as well as the surrounding circumstances” (People v Steinberg, 79 NY2d 673, 682; see also, People v Smith, 79 NY2d 309, 315; People v Barnes, 50 NY2d 375, 381).

At trial, evidence was adduced that defendant and the victim had an altercation earlier in the day. The victim’s daughter testified that she observed defendant and her mother enter her mother’s bedroom. The victim’s daughter further testified that she heard "thumping noises” emanating from her mother’s bedroom, as well as sounds of throat-clearing, that lasted for approximately five minutes. That testimony, as well as evidence that the victim’s clothing was torn and in disarray, supports the conclusion that defendant and the victim engaged in a violent, prolonged struggle and reasonably supports an inference that defendant intended to kill the victim. Moreover, it was reasonable for the trier of fact to conclude, based upon the evidence, that defendant was not so intoxicated that he could not form the requisite intent. Finally, upon our review of the record, we cannot conclude that the trier of fact failed to give the evidence the weight it should be accorded (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Monroe County Court, Marks, J.—Murder, 2nd Degree.) Present—Den-man, P. J., Fallon, Doerr and Balio, JJ.