Appeal from a judgment of the Supreme Court, Erie County (Shirley Troutman, J.), rendered January 26, 2010.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 20, 2012
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.
The judgment convicted defendant, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25  [intentional murder]) and criminal possession of a weapon in the second degree (§ 265.03 ). Contrary to defendant's contention, the conviction is supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495). Addressing first the conviction of intentional murder, we note that " [i]intent to kill may be inferred from defendant's conduct as well as the circumstances surrounding the crime' " (People v Badger, 90 AD3d 1531, 1532; see People v Geddes, 49 AD3d 1255, 1256, lv denied 10 NY3d 863). Here, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), we conclude that it is legally sufficient to establish defendant's intent to kill. The People presented evidence that defendant had quarreled with the victim immediately before the shooting (see People v Henning, 267 AD2d 1092, 1092, lv denied 94 NY2d 903). In addition, the shooting occurred while defendant was facing the victim and, with the encouragement of a bystander, defendant pointed a gun toward the victim from a few feet away and fired that weapon (see People v Cobb, 72 AD3d 1565, 1565, lv denied 15 NY3d 803; People v Colon, 275 AD2d 797, 797, lv denied 95 NY2d 904). With respect to the conviction of criminal possession of a weapon, "[t]he evidence, viewed in the light most favorable to the People . . ., is legally sufficient to disprove defendant's defense of temporary and lawful possession of a weapon" (People v Miller, 259 AD2d 1037, lv denied 93 NY2d 927; see generally Bleakley, 69 NY2d at 495).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we further conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 NY2d at 495). "[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]). Finally, the sentence is not unduly harsh or severe.
Frances E. Cafarell Clerk of the Court
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