People v. Austin

Judgment unanimously affirmed. Memorandum: During the course of his escape from the scene of a robbery, defendant exchanged gunfire with a police officer. As the result of this incident, he was tried and convicted of attempted murder. We reject defendant’s contention that there was insufficient evidence to prove that the defendant intended to kill, rather than to injure, the officer. From defendant’s actions in firing two shots directly at the officer at close range, the jury could properly infer an intent to kill.

The claimed error in the charge concerning the effect of intoxication was not preserved for our review, but if we were to pass upon this issue, we would hold that, read as a whole against *860the background of the evidence, the charge did not affect any substantial right of the defendant (see People v Crumble, 286 NY 24, 26).

The sentence imposed is constitutional (see People v Carr, 87 AD2d 969, 970) and is not harsh and excessive.

We have reviewed defendant’s other claims of error and we find them to be without merit. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — attempted murder, first degree, and other charges.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and O’Donnell, JJ.