| People v Joseph |
| 2009 NY Slip Op 09994 [68 AD3d 1534] |
| December 31, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShahkeneJoseph, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered December 21, 2007, upon a verdict convicting defendant of the crime of murder in thesecond degree.
In a written statement given to police, defendant described how he and his codefendant,Lamar Reid, attempted to rob an apartment in the City of Albany, which resulted in the death ofa man visiting the apartment. Reid kicked open the front door to the apartment house, but thevictim was behind the door and pushed it closed, whereupon Reid and defendant fired severalshots through the door before fleeing. Defendant was indicted and tried on two counts of murderin the second degree—intentional murder and depraved indifference murder. Defendanttestified at trial to disavow his written statement and other evidence he provided to police anddenied being present at or involved in the crime. Nevertheless, he was convicted on the depravedindifference murder charge.[FN*]We affirm.
Defendant properly preserved his contention that the People presented legally [*2]insufficient evidence to convict on the depraved indifferencemurder count by specifically raising the issue of the required culpable mental state in his trialand posttrial motions to dismiss. "A verdict is legally sufficient when, viewing the facts in a lightmost favorable to the People, there is a valid line of reasoning and permissible inferences fromwhich a rational jury could have found the elements of the crime proved beyond a reasonabledoubt" (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks andcitations omitted]). Initially, we note that legally sufficient evidence of defendant's participationin this homicide was presented in the form of documents that defendant provided to police,including his signed statement, the photograph he marked to show where he and Reid stoodwhen they fired their weapons, and the apology letter he wrote to the victim's family. Details ofdefendant's statement were corroborated by ballistic evidence and eyewitness testimony. Theprincipal issue then is defendant's culpable mental state at the time the murder was committed.
A conviction for depraved indifference murder requires proof that "[u]nder circumstancesevincing a depraved indifference to human life, [a person] recklessly engages in conduct whichcreates a grave risk of death to another person, and thereby causes the death of another person"(Penal Law § 125.25 [2]; see People v Baptiste, 306 AD2d 562, 564 [2003], lvdenied 1 NY3d 594 [2004]). The necessary culpable mental state requires both recklessnessand depraved indifference (see People v Feingold, 7 NY3d 288, 294 [2006]; People vStewart, 36 AD3d 1156, 1158 [2007], lv denied 8 NY3d 991 [2007]). "A person actsrecklessly . . . when he [or she] is aware of and consciously disregards a substantialand unjustifiable risk" (Penal Law § 15.05 [3]; see People v Hartman, 4 AD3d 22,24 [2004]). The Court of Appeals has explained that "depraved indifference is best understood asan utter disregard for the value of human life—a willingness to act not because oneintends harm, but because one simply doesn't care whether grievous harm results or not"(People v Suarez, 6 NY3d 202, 214 [2005]; accord People v Feingold, 7 NY3d at296, 298 [Ciparick, J., dissenting]). "The mens rea of depraved indifference to human life can,like any other mens rea, be proved by circumstantial evidence" (People v Feingold, 7NY3d at 296).
In his written statement to police, defendant admitted that he had only intended to rob theapartment—which was a known location for selling marihuana. Defendant's statementindicated that Reid kicked open the front door and he and Reid saw the victim standing in thedoorway before the victim pushed the door closed. Although the victim happened to have apellet gun, there was no evidence that either defendant or Reid saw it. The eyewitness inside theapartment testified that the victim had just started to open the door when he cried out in surpriseand closed the door before the shots were fired. The victim was struck by a round from Reid'sweapon and spread shot from defendant's shotgun; he bled to death. The eyewitness testified thatshortly before the shooting, defendant had visited the apartment to buy marihuana, but wasotherwise unknown to him. There was no evidence that defendant knew the victim or had anypremeditated intention to injure or kill the victim. A rational jury could therefore find thatdefendant, acting without a conscious objective to kill, but with a wanton disregard for a graverisk of death (see People v Feingold, 7 NY3d at 293), shot blindly through the door,resulting in the victim's death.
The weight of the credible evidence admitted at trial also supports defendant's conviction.Certainly, " 'based on all the credible evidence[,] a different finding would not have beenunreasonable' " (People v Romero, 7 NY3d 633, 643 [2006], quoting People vBleakley, 69 NY2d 490, 495 [1987]). Notably, Reid was tried separately and convicted ofintentional murder. In this case, a rational jury could have reasonably inferred that, in the instantthat Reid and [*3]defendant's access to the apartment wasblocked when the victim closed the door, a conscious objective to harm or kill him was formed.In our view, however, the evidence presented is more consistent with the conclusion that noconscious objective to harm anyone was present, and that defendant fired at the door in callousfrustration, spite or surprise in response to the door being closed in his face, yet with utterdisregard for the victim or, indeed, anyone else that might have been behind that closed door.Defendant fled immediately, without robbing the apartment, and no evidence was presented thatthey entered the building or saw the victim after shooting at the door, further evincing acomplete lack of concern over whether their shots hit anyone.
Defendant next claims that it was error to submit both intentional murder and depravedindifference murder for the jury's consideration. To be sure, the circumstances in which bothcharges may be considered are narrow (see People v Suarez, 6 NY3d at 211-216).However, while there is no question that firing through the door where the victim stood amoment before created a grave danger that the victim would be injured or killed, as noted above,the circumstances here presented a close question of fact for the jury regarding defendant's stateof mind at the moment he fired his weapon. It is clear that under the circumstances, if no intentto kill the victim was formed, defendant's conduct "[r]eflect[ed] wickedness, evil or inhumanity,as manifested by brutal, heinous and despicable acts" and his conduct was "so wanton, sodeficient in a moral sense of concern, so devoid of regard of the life or lives of others, and soblameworthy as to render [defendant] as culpable as one whose conscious objective is to kill"(People v Suarez, 6 NY3d at 214 [internal quotation marks and citation omitted]).
Turning to defendant's claim of prosecutorial misconduct, in our view, the record as a wholedoes not support defendant's claim that he was denied a fair trial (see People v Diotte, 63AD3d 1281, 1282 [2009]; People v Dickson, 58 AD3d 1016, 1018 [2009], lvdenied 12 NY3d 852 [2009]). Initially, we note that defendant failed to preserve for ourreview, by specific objection at trial, any objection to (1) testimony indicating that defendant wasincarcerated when police interviewed him, (2) admission of a portion of defendant's priortestimony, (3) references to plea negotiation, or (4) statements in the prosecutor's summationaddressing the inconsistency between defendant's testimony and that of other witnesses. Werewe to consider these objections, under the circumstances presented, we would find them to beeither without merit or, at most, harmless error. As to statements made during the prosecutor'ssummation to which defendant preserved an objection, we also find that any prejudice was deminimis or avoided entirely by appropriate curative instruction. Finally, defendant's claim ofineffective assistance of counsel is without merit.
Spain, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Reid was tried separately andconvicted of murder in the second degree (intentional murder).