| People v Lavalley |
| 2018 NY Slip Op 01223 [158 AD3d 993] |
| February 22, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Shawn M.Lavalley, Appellant. |
Mark Schneider, Plattsburgh, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered August 17, 2016, upon a verdict convicting defendant of the crimes of assault in thesecond degree and criminal possession of a weapon in the fourth degree.
On a clear day in December 2014, defendant was hunting alone with a shotgun despite beingbarred from possessing one due to his prior criminal history. He shot at an animal in the woodsthat turned out to be another hunter, and the victim was struck and seriously injured. As a resultof the incident, defendant was charged in an indictment with assault in the second degree andcriminal possession of a weapon in the fourth degree. Defendant was convicted as chargedfollowing a jury trial, and County Court sentenced him to an aggregate prison term of seven yearsto be followed by postrelease supervision of three years. Defendant now appeals, focusing uponhis conviction for assault in the second degree.
While there is no dispute that defendant shot and seriously injured the victim, defendantargues that the trial evidence was legally insufficient to support a finding that he "recklesslycause[d] serious physical injury" in order to support a conviction for assault in the second degree(Penal Law § 120.05 [4]). In order to assess whether the proof is legally sufficient,we will view the trial evidence in the light most favorable to the People and ask whether a validline of reasoning exists from which a rational jury could find that the elements of the crime wereestablished beyond a reasonable doubt (see People v Flanagan, 28 NY3d 644, 656 [2017]; People v Denson, 26 NY3d 179,188 [2015]). A person behaves in a criminally reckless manner when he or she "is aware of andconsciously disregards a substantial and unjustifiable risk of a result, [*2]where the risk is of such a nature and degree that to disregard itconstitutes a gross deviation from the standard of conduct of a reasonable person" (AllstateIns. Co. v Zuk, 78 NY2d 41, 46 [1991]; see Penal Law § 15.05 [3]; People v Jorgensen, 26 NY3d 85,90 [2015]; People v Montanez, 41 NY2d 53, 56 [1976]).
In that regard, a hunting safety instructor testified that mistaking a person for game is themost common cause of hunting mishaps and that defendant was made aware of that risk during arequired safety course for hunters in which it was stressed that a hunter must be "100 percent sureof [the] target" before opening fire. Defendant had additionally spoken to the renter of theproperty to obtain permission to hunt and, in so doing, learned that the victim was permitted tohunt there. The People further submitted into evidence photographs of the scene, and thephotographer testified that he had stood in defendant's position and was able to recognize aperson in the victim's location as a human being. Defendant's own statements to investigatorsreveal a lack of effort to confirm his belief that he was observing an antlered male deer that hewas entitled to shoot, as he heard something moving, watched a "large brown thing" movethrough the trees and then opened fire.
The jury could rationally find from the foregoing that defendant was aware that he wouldcreate a substantial and unjustifiable risk of serious physical injury to others in general and thevictim in particular if he opened fire without being sure of his target. The jury could furtherdetermine that he consciously disregarded that risk when he shot at an animal without adequateefforts to identify it and, in so doing, acted with "the kind of seriously blameworthy carelessnesswhose seriousness would be apparent to anyone who shares the community's general sense ofright and wrong" (People v Asaro,21 NY3d 677, 685 [2013] [internal quotation marks and citations omitted]; accord People v Briskin, 125 AD3d1113, 1119 [2015], lv denied 25 NY3d 1069 [2015]). The conviction forsecond-degree assault is therefore supported by legally sufficient proof (see People vCruciani, 36 NY2d 304, 305-306 [1975]; People v George, 43 AD3d 560, 563-564 [2007], affd 11NY3d 848 [2008]; People v Grenier, 250 AD2d 874, 876-877 [1998], lv denied92 NY2d 898 [1998]).[FN*]
Defendant next contends that County Court erred in refusing his request to charge the lesserincluded offense of assault in the third degree (see Penal Law § 120.00 [3])and, contrary to the People's suggestion, his request preserved the issue for our review(see CPL 470.05 [2]). When a defendant requests that a lesser included offense besubmitted to the jury, the charge must be given "if (1) 'it is impossible to commit the greatercrime without concomitantly committing the lesser offense by the same conduct' and (2) 'there[is] a reasonable view of the evidence to support a finding that the defendant committed thelesser offense but not the greater' " (People v Ryan, 55 AD3d 960, 963 [2008], quoting People vVan Norstrand, 85 NY2d 131, 135 [1995]; see CPL 1.20 [37]; 300.50 [1], [2]; People v Rivera, 23 NY3d 112,120-121 [2014]). Assault in the third degree as defined by Penal Law § 120.00 (3)is quite similar to assault in the second degree as defined by Penal Law § 120.05(4), differing only in that a defendant act out of criminal negligence and inflict physical injuryrather than serious physical injury (compare Penal Law § 120.00 [3],with Penal Law § 120.05 [4]). Neither difference creates a scenario where a[*3]defendant may commit the greater offense withoutcommitting the lesser, as negligence is subsumed within the "higher or more culpable" mentalstate of recklessness (People v Montanez, 41 NY2d at 56; see People v Green, 56NY2d 427, 433 [1982]) and " '[s]erious physical injury' denotes a degree of physicalinjury, not a separate, distinguishable type of harm" (People v Leonardo, 89 AD2d 214,217 n 1 [1982], affd 60 NY2d 683 [1983]). As such, assault in the third degree is a lesserincluded offense of assault in the second degree (see CPL 1.20 [37]; People vRandolph, 81 NY2d 868, 869 [1993]; People v Ryan, 55 AD3d at 963-964; People v Baker, 4 AD3d 606, 612[2004], lv denied 2 NY3d 795 [2004]).
As for whether a reasonable view of the evidence would support a finding that defendantcommitted the lesser offense but not the greater, County Court found that it would not becausethe victim—who was shot in the hand and abdomen, would have died without treatmentand required surgery, hospitalization and physical therapy to recover—indisputablysustained serious physical injuries (see People v Luck, 294 AD2d 618, 620 [2002], lvdenied 98 NY2d 699 [2002]; People v Burnett, 270 AD2d 901, 902 [2000], lvdenied 95 NY2d 851 [2000]). We agree that the victim's injuries were serious but, inasmuchas assault in the third degree also demands a different mental state on the part of defendant, thelack of question as to the victim's injuries would only warrant rejecting a request to chargeassault in the third degree "if . . . no difference in mens rea [was] legitimately inissue[ ]" (Richard A. Greenberg et al., New York Criminal Law § 5:18 [4th ed 6West's NY Prac Series 2016] [emphasis omitted]; cf. People v Vasquez, 25 AD3d 465, 466 [2006] [the defendantindisputably intended to, and did, cause serious physical injury to the victim so as to defeatrequest for lesser included offense], lv denied 6 NY3d 854 [2006]; People vLuck, 294 AD2d at 620; People v Eagleston, 194 AD2d 623, 623 [1993]).
Defendant argued that the jury could reasonably find from the trial proof that he did not actrecklessly so as to commit assault in the second degree (see Penal Law§ 120.05 [4]), but did behave negligently so as to commit assault in the third degree(see Penal Law § 120.00 [3]). Recklessness and criminal negligence areachingly close to one another; a reckless defendant "perceives the risk, but consciously disregardsit," while a criminally negligent defendant "negligently fails to perceive the risk" altogether(People v Stanfield, 36 NY2d 467, 470 [1975]; see Penal Law§ 15.05 [3], [4]; People v Licitra, 47 NY2d 554, 558 [1979]; People vMontanez, 41 NY2d at 56). A jury distinguishes between the two by considering "theevidence . . . relating to the mental state of the defendant at the time of the crime"(People v Strong, 37 NY2d 568, 570 [1975]; see People v Davis, 142 AD2d 791,792 [1988]).
In that regard, defendant knew that the victim had permission to hunt on the property wherethe shooting occurred, but also told investigators that he had seen no sign of the victim or anyoneelse in the three weeks that he had been hunting in the area. The victim confirmed that the areawas not frequented by hunters, testifying that he had never seen another person in the 30 yearsthat he had hunted there and saw human tracks for the first time the week before he was shot.There was no proof that defendant recalled the advice given at a hunting safety class, which hetook 20 years prior, to be certain of his target before opening fire. Even if he did, however, hetold investigators that he opened fire after hearing what he thought were deer horns rubbingagainst branches and watched what he thought was a deer but was, in reality, the stooped-overvictim in a camouflage jacket. Viewing this evidence in the light most favorable to defendant(see People v Rivera, 23 NY3d at 120-121; People v Martin, 59 NY2d 704, 705[1983]), the jury could have reasonably found that defendant did not disregard, but instead failedto perceive, an unjustifiable risk of injury to the victim when he opened fire without sufficientobservation (see People v Penrose, 146 AD2d 947, 947-948 [1989], lv denied 74NY2d 850 [1989]; People v Williams, 70 AD2d 957, 957 [1979], affd 50 NY2d1043 [1980]). County Court therefore erred in refusing to charge the lesser included offense ofassault in the third degree, and that failure [*4]warrants reversalof the conviction for assault in the second degree as charged in count 1 of the indictment andremittal for a new trial on that count (see People v Martin, 86 AD2d 920, 921 [1982],affd 59 NY2d 704 [1983]).
In light of a new trial being required on the second-degree assault count alone, defendant'sremaining claims are academic. For purposes of the retrial, we do briefly comment upondefendant's unpreserved challenge to the admission of photographs taken at the scene on the dayafter the shooting occurred. The photographs were probative in that they documented the sceneand, to the extent one of the photographs might have misled the jury as to what defendant wasable to see from his vantage point, County Court ameliorated any prejudice through a limitinginstruction. Thus, we discern no abuse of discretion in their admission (see People vWood, 79 NY2d 958, 960 [1992]; People v Thibeault, 73 AD3d 1237, 1243 [2010], lv denied15 NY3d 810 [2010], cert denied 562 US 1293 [2011]).
McCarthy, J.P., Lynch, Clark and Rumsey, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing defendant's conviction of assault in the second degree undercount 1 of the indictment and vacating the sentence imposed thereon; matter remitted to theCounty Court of Essex County for a new trial on said count; and, as so modified, affirmed.
Footnote *:To the extent that defendantrequests that this Court conduct a weight of the evidence review, after according "[g]reatdeference" to the jury's assessment of credibility, we cannot say "that the trier of fact. . . failed to give the evidence the weight it should be accorded" (People vBleakley, 69 NY2d 490, 495 [1987]; see People v Grenier, 250 AD2d at 877).