| People v Wilson |
| 2009 NY Slip Op 03412 [61 AD3d 1269] |
| April 30, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John T.Wilson, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Rensselaer County (McGrath,J.), rendered May 9, 2006, upon a verdict convicting defendant of the crime of manslaughter inthe second degree.
During the early morning hours of September 10, 2005, the victim arrived in an intoxicatedstate at a party held in an apartment in the City of Troy, Rensselaer County, with the expressedpurpose of retrieving a shotgun that allegedly belonged to him. Defendant, a close friend of thevictim, and another individual, identified as Johnny Falu, both attended the same party and werein possession of shotguns. According to witnesses, defendant and Falu argued about theownership of the shotgun carried by Falu. The victim then asked defendant if he could speak tohim and the two men entered a small bathroom in the apartment. Shortly thereafter, Falu joinedthem in the bathroom and closed the door. Witnesses then heard "yelling, arguing" and scufflingnoises that sounded "[l]ike somebody was fighting." Finally, they heard the sounds of at leastone gunshot.[FN1]It is undisputed that the victim was shot in the head with the shotgun [*2]carried by defendant and the victim died at the scene. Defendantand Falu fled the apartment and, while defendant initially hid the weapon and lied about hisinvolvement in the shooting, he later led the police to the shotgun's location. He also gave astatement setting forth, among other things, that he "accidentally killed one of [his] best friends"when he pulled the trigger of a shotgun that was not supposed to fire "because the safety wassupposed to be on."
Thereafter, an indictment was handed up charging defendant with one count of depravedindifference murder in the second degree. Following all the proof at trial, County Court, in itsinstruction, also charged to the jury the lesser included offenses of manslaughter in the seconddegree and criminally negligent homicide. Defendant was acquitted of depraved indifferencemurder, but found guilty of manslaughter in the second degree. He was sentenced to a prisonterm of 5 to 15 years, prompting this appeal.
Initially, defendant maintains that the jury's verdict as to manslaughter in the second degreewas against the weight of the evidence. We do not agree. Assuming arguendo that "an acquittalon this particular charge would not have been unreasonable, we must weigh conflictingtestimony, review any rational inferences that may be drawn from the evidence and evaluate thestrength of such conclusions" (People v Baker, 58 AD3d 1069, 1071 [2009] [internalquotation marks and citation omitted]; see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348 [2007]; People v Richardson,55 AD3d 934, 935 [2008], lv dismissed 11 NY3d 857 [2008]). In conducting thatreview, the evidence is viewed in a neutral light and we accord deference to the jury's credibilitydeterminations (see People vCollins, 56 AD3d 809, 810 [2008], lv denied 11 NY3d 923 [2009]).
Here, the evidence showed that the victim, while intoxicated, engaged in a heated argumentwith Falu as to the ownership of a shotgun. Although the witnesses indicated that the argumentdid not appear to be between defendant and the victim, the proof, nevertheless, showed thatdefendant participated in the discussion while carrying a loaded weapon. Forensic proofestablished that this weapon was next to the victim's head at the time it discharged. Moreover,defendant, in his statement to the police, admitted he pulled the trigger of that gun. While he alsoindicated he pulled the trigger under the mistaken belief that the safety was engaged, he furtheracknowledged an awareness that various guns have different, potentially confusing, types ofsafeties.[FN2]Contrary to defendant's argument, the proof submitted by the People cumulatively supports afinding that defendant acted recklessly in "consciously disregard[ing] a substantial andunjustifiable risk" (Penal Law § 15.05 [3]; see Penal Law § 125.15 [1]) and,further, that the verdict was not against the weight of the evidence.[*3]
Next, defendant asserts that County Court erred indenying his postsummation motion seeking to dismiss the indictment on the basis that, during thecourse of the prosecutor's summation, the People allegedly changed their theory of the case fromdepraved indifference murder, as charged in the indictment, to that of intentional murder, whichwas unsupported by the evidence in the record.[FN3]While it is a fundamental right that a defendant "be tried and convicted of only those crimes andupon only those theories charged in the indictment" (People v McCallar, 53 AD3d 1063, 1064 [2008], lv denied11 NY3d 833 [2008] [internal quotation marks and citations omitted]), here, we conclude thatdefendant received appropriate notice of the accusation against him (see id.), and theprosecutor did not commit reversible error in his summation.
Significantly, defendant primarily takes issue with the prosecutor's remarks to the effect thatthe shooting was "not an accident" and, instead, defendant "deliberate[ly]" put a loaded shotgunto his friend's head in a tiny room where tempers were flaring and pulled the trigger. However,the fact that defendant affirmatively pulled the trigger is an appropriate characterization ofdefendant's own admission that he did so, regardless of the claimed mistake regarding the safetymechanism that is fully set forth in the statement submitted into evidence by the People.Moreover, it is apparent that the prosecutor's remarks regarding defendant's affirmative conductwere in large part a fair comment in response to defense counsel's contention in his summationthat the shooting was merely a tragic "accident." To the extent that certain of the prosecutor'scomments, particularly those speculating about defendant's knowledge of the operation of gunsafety mechanisms, could be construed as exceeding the bounds of fair comment, we concludethat those remarks "did not substantially prejudice defendant's trial when viewed in the contextof the entire summation and, even more, the entire trial" (People v Lockhart, 12 AD3d 842, 845 [2004], lv denied 4NY3d 800 [2005] [internal quotation marks and citation omitted]). Not only did County Courtproperly instruct the jury with the charged crime, as well as the lesser included offenses, thejury's rejection of the more severe charge refutes defendant's argument that the jury was inflamedor confused by the prosecutor's closing remarks. Thus, we conclude that any error in some of thecomments was "not so egregious or prejudicial as to deprive defendant of a fair trial and did notoperate to detract the jury from the issue of his [*4]guilt of thecrimes charged" (People v Riback,57 AD3d 1209, 1214 [2008]).[FN4]
Finally, we are unpersuaded by defendant's assertion that his sentence to a prison term of 5to 15 years was unduly harsh and excessive. Given the facts of this case and defendant's criminalhistory, we find "neither an abuse of discretion nor the existence of any extraordinarycircumstances warranting a reduction of the sentence in the interest of justice" (People v Barringer, 54 AD3d 442,444 [2008], lv denied 11 NY3d 830 [2008]).
Defendant's remaining contentions have been examined and found to be unpersuasive.
Mercure, Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Notably, while witnessesremember hearing only one gunshot, the record demonstrates that two were actually fired, onefrom each weapon, apparently in relatively quick succession. Along with the shot fromdefendant's weapon that ended the victim's life, Falu also shot himself in the foot with theshotgun he was carrying.
Footnote 2: Defendant indicated in hisstatement, "This safety was different so the gun went off when I thought it wouldn't. Somesafet[ies] you cover the red and it is safe and some other safet[ies] you see the red and [it's] safe.This happened because I made a mistake about the safety on the gun."
Footnote 3: While defendant clearly arguesin his brief that the People allegedly altered their theory of prosecution during summation, notduring the presentation of proof, we note that he cites to certain cases where prosecutorsimpermissibly presented evidence that differed from that set forth in the indictments (see e.g. People v Greaves, 1 AD3d979, 980 [2003]). Nevertheless, defendant acknowledges that the People did not set forthany proof as to defendant's mental state. In fact, defense counsel did not seek to dismiss theindictment on the basis of changed theory until after the prosecutor's summation and, further,specifically argued in support of that motion that the basis thereof was the prosecutor's allegederror in arguing during summation a theory based on evidence different than that pleaded andpresented at trial.
Footnote 4: We are similarly unpersuadedthat defendant was entitled to a mistrial as the result of remarks made by the prosecutor duringthe summation as to whether the victim was upright or prone at the time of the shooting basedupon the location of certain blood splatters on a wall. Although defense counsel argued, amongother things, that the prosecutor was attempting to imply an intentional murder by doing so,County Court aptly noted that since defendant admitted pulling the trigger, it did not matterwhether the victim was laying down or upright when he was shot; the only relevant issueconcerned "defendant's statement indicat[ing] he thought the safety was on."