Opinion
June 27, 1988
Appeal from the Supreme Court, Queens County (Calabretta, J.).
Ordered that the judgment is affirmed.
This appeal arises out of events that occurred at 2:30 A.M. at a Roy Rogers restaurant in Queens. Two of the defendant's friends used a car jack to smash the restaurant's glass door, entered the restaurant with a shotgun, shot the manager, and were apprehended as they were leaving the premises. The defendant asserts that due to his intoxication, he slept in his vehicle while the crimes were being committed by his friends, and that he had no idea either of their plans or of the events that transpired in the restaurant. In sum, he urges that the proof was legally insufficient to find that he acted with the requisite mental culpability or that he intended to aid his friends in the commission of these crimes (see, Penal Law § 20.00, 20.15 Penal).
Intent may be implied from the act itself, or from the defendant's conduct and surrounding circumstances (see, People v Bracey, 41 N.Y.2d 296, 301, rearg denied 41 N.Y.2d 1010; People v Drees, 53 A.D.2d 735, 737). Knowledge, like intent, may be implied based on all of the surrounding circumstances (see, e.g., People v Dordal, 55 N.Y.2d 954, 956, rearg dismissed 61 N.Y.2d 759). Whether a defendant is too intoxicated to form intent is essentially a jury question (see, People v DeAngelo, 129 A.D.2d 807; People v Scott, 111 A.D.2d 45, 46). Similarly, any discrepancies or inconsistencies in testimony present issues of credibility primarily for the jury to resolve (see, People v Jamison, 127 A.D.2d 793, lv denied 69 N.Y.2d 1005; People v Curtin, 115 A.D.2d 753, 754, lv denied 67 N.Y.2d 760).
At trial the defendant admitted that he drove his friends to a house where one friend entered and returned with a bag. He further stated that he was unaware that a shotgun had been placed in his car by this friend or that a .22 caliber pistol was in the bag. By his own admission, he could remember all events that took place that evening, but selectively could not remember conversations in the car, or statements made by him at the police station. In great detail he related the problems he had with the car's muffler that day and the measures he took to manually repair it, even though he asserted he was so inebriated he was unaware of what day it was. His testimony at trial conflicted with prior statements he made to the police with regard to the time he arrived at the restaurant, which statements created a lapse of more than a 2 1/2 hours of time for which he was unable to account.
One employee testified to hearing the sound of a muffler or a loud noise prior to the smashing of the glass, which would have been at 2:30 A.M. A police officer, and an employee who managed to escape and call for assistance, saw a head bobbing around in the car at different times, and both indicated that the car was right next to the restaurant's door. The defendant testified that he parked the car 30 to 40 feet away from the door, and that perhaps one of his friends moved it next to the door as he slept.
The defendant further testified that the car jack, shotgun, and knife were removed from the car while he slept, and the restaurant's glass door was thereafter smashed with the car jack but this was inaudible to the defendant. The defendant admitted that when the police arrived, he backed his car up to get out of the way, which according to a police lieutenant at the scene was done at a high rate of speed with the sound of the car's exhaust detectable.
Contrary to the defendant's assertions, the facts reveal more than mere presence at the scene, and provide a sufficient basis for the jury's verdict since the conclusion of guilt is consistent with, and flows naturally from them (see, People v Kennedy, 47 N.Y.2d 196, 202, rearg dismissed 48 N.Y.2d 635, 656; People v Vega, 126 A.D.2d 686, 687, lv denied 69 N.Y.2d 887). Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish that the defendant acted in concert with, and intentionally aided his companions with the requisite mental state (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; People v Contes, 60 N.Y.2d 620, 621). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
The defendant's claim of ineffective assistance of counsel is equally devoid of merit. Counsel did not ignore any exculpatory theory of defense or fail to introduce any exculpatory evidence or testimony (see, People v Benn, 68 N.Y.2d 941, 942; People v Jenkins, 68 N.Y.2d 896, 898). The defendant's contentions relate more to his disagreement with failed defense strategies and tactics (see, People v Benn, supra; People v Satterfield, 66 N.Y.2d 796, 799-800; People v Baldi, 54 N.Y.2d 137, 146-147).
No objections were made to the prosecutor's statements during summation and these claims are therefore unpreserved for appellate review (see, People v Nuccie, 57 N.Y.2d 818, 819). In any event, the prosecutor's statements on summation stayed within the four corners of the evidence (see, People v Ashwal, 39 N.Y.2d 105, 109), and assuming that any of the statements went beyond the bounds of propriety, any possible prejudice which might have resulted was harmless error and was dissipated in large measure by the court's instructions to the jury not to speculate and not to consider counsel's statements as evidence (see, People v Lebron, 114 A.D.2d 859, 860).
The court accurately charged the jury, and the omission in failing to reiterate the effect of intoxication on the crimes involving criminal possession of a weapon was ameliorated by the court's general charge on intoxication and the fact that the jury clearly discounted evidence of intoxication with respect to all other counts. As a result, we find any error to be harmless (see, People v Crimmins, 36 N.Y.2d 230).
We decline to reduce the sentence in the interest of justice. We have considered the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Bracken, Brown and Kunzeman, JJ., concur.