| People v Horton |
| 2007 NY Slip Op 10415 [46 AD3d 1225] |
| December 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony D.Horton, Appellant. |
—[*1] John R. Trice, District Attorney, Elmira, for respondent.
Cardona, P.J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered October 17, 2006, upon a verdict convicting defendant of the crimes of aggravatedmurder, murder in the first degree, murder in the second degree, robbery in the first degree (twocounts), robbery in the third degree, criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree (two counts).
On March 1, 2006, defendant, armed with a .357 magnum, along with Bryan Adams robbed abank in the Town of Big Flats, Chemung County. After fleeing the bank, State Trooper AndrewSperr pulled over the vehicle being driven by Adams, presumably after noticing the truck'slicense plate hanging by a rope. As Sperr approached the vehicle, defendant began shooting athim. Gunshots were exchanged ending with Sperr being fatally wounded and defendant andAdams both sustaining injuries.
Defendant was arrested at a motel a short time later after his wife called 911 to obtainmedical attention for him. After being read his Miranda rights, defendant made variousstatements to the police both in the ambulance and at the hospital. Thereafter, defendant wasindicted on numerous charges and his subsequent motion to suppress the statements he made topolice was denied. Following a jury trial, defendant was convicted of aggravated murder, murderin the first degree, murder in the second degree, robbery in the first degree (two counts), robberyin the third degree, criminal possession of a weapon in the second degree and criminal possession[*2]of a weapon in the third degree (two counts).
Initially, defendant contends that County Court erred in denying his motion to suppress hisinculpatory statements to the police because he invoked his right to remain silent. We disagree.Although police are required to honor a defendant's invocation of the right to remain silent,police are not required to cease questioning when faced with anything less than an unequivocaland unqualified invocation of that right (see People v Glover, 87 NY2d 838, 839 [1995];People v Caruso, 34 AD3d 860,862 [2006], lv denied 8 NY3d 879 [2007]). Here, defendant was accompanied in theambulance by Officer Dale Partridge and State Police Investigator John Ward. After Ward readdefendant his Miranda rights, defendant, who Ward testified was alert, cooperative andcalm during the ambulance ride, indicated that he understood those rights and stated somethingto the effect of "I think I'll wait" or "I think I'll wait a minute." A few minutes later, whenPartridge informed defendant that he had some concerns, defendant agreed to answer hisquestions. Because defendant's response did not unequivocally preclude further questioning butwas "temporally qualified" and, in fact, implied that he might speak at a later time (People vCaruso, 34 AD3d at 863; see People v Goss, 162 AD2d 466, 467 [1990], revd onother grounds 78 NY2d 996 [1991]), we find no error in County Court denying defendant'smotion to suppress his statements.
Next, we are unpersuaded by defendant's contention that the intent to kill element of thecrimes of aggravated murder (see Penal Law § 125.26 [1] [a] [i]) and murder in thefirst degree (see Penal Law § 125.27 [1] [a] [vii]) was not supported by the weightof the evidence. "In reviewing the weight of the evidence, [i]f based on all the credible evidencea different finding would not have been unreasonable, then [we must] weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People v Tirado, 19 AD3d 712, 713 [2005], lv denied 5NY3d 810 [2005] [internal quotation marks and citations omitted]; see People v Romero, 7 NY3d633, 643-644 [2006]). Here, in addition to defendant's inculpatory statements and testimonyregarding Sperr's injuries, Adams testified that defendant asked if he wanted "to do a little bit oftime or a lot of time" when being pulled over by Sperr and then stated that "New York don't havethe death penalty, that they can just give him life in prison" and that "he was going to shoot thecop." Adams also testified that after the exchange of gunfire had stopped and Sperr was on theground not moving, defendant shot at Sperr again and said that he had killed him. This wasconsistent with the forensic pathologist's testimony that two of the bullets entered Sperr's bodywhile he was in the prone position. Although defendant attacks the credibility of Adams'testimony based upon, among other things, Adams' criminal history and "favorable treatment" inexchange for testifying against defendant, it is within the province of the jury to resolve suchcredibility determinations (see People vHeadley, 38 AD3d 1007, 1007 [2007], lv denied 9 NY3d 865 [2007]).According due deference to such credibility determinations, upon our independent review of therecord, we find that the verdict with respect to the challenged convictions was not against theweight of the evidence (see People v Caruso, 34 AD3d at 863, 864-865 [2006]; People v Mullings, 23 AD3d 756,758 [2005], lv denied 6 NY3d 756 [2005]).
Although not raised by either party, modification of the judgment is required. Under CPL300.40 (3) (b), "[w]ith respect to inclusory concurrent counts, . . . [a] verdict ofguilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted."Here, defendant was convicted of murder in the first degree (see Penal Law §125.27 [1] [a] [vii]; [b]) and murder in the second degree (see Penal Law § 125.25[3]), which is an inclusory concurrent count of murder in the first degree (see People v Miller, 6 NY3d 295,303 [2006]; People v [*3]Cherry, 46 AD3d 1234 [2007] [decided herewith]; see generally CPL 1.20 [37]; 300.30 [4]). Similarly, defendantwas also convicted of robbery in the first degree (two counts) (see Penal Law §160.15 [1], [2]) and robbery in the third degree (see Penal Law § 160.05), which isan inclusory concurrent count of robbery in the first degree (see People v Maharaj, 308AD2d 551, 552 [2003], lv denied 1 NY3d 575 [2003]). As such, defendant's convictionsof murder in the second degree and robbery in the third degree should be reversed and therespective counts of the indictment[FN*] should be dismissed.
Crew III, Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is modified, as amatter of discretion in the interest of justice, by reversing defendant's convictions of murder inthe second degree and robbery in the third degree under counts 3 and 6 of the indictment; saidcounts dismissed and sentences imposed thereon vacated; and, as so modified, affirmed.
Footnote *: Counts 3 and 6 were originallycharged as counts 4 and 7 in the indictment. However, the People withdrew count 3 of theindictment at the close of evidence, renumbering count 4 as count 3 and count 7 as count 6.