| People v Warner |
| 2021 NY Slip Op 02840 [194 AD3d 1098] |
| May 6, 2021 |
| Appellate Division, Third Department |
[*1](May 6, 2021)
| The People of the State of New York,Respondent, v Paul M. Warner, Appellant. |
Michelle E. Stone, Vestal, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Geoffrey B. Rossi of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered May 19, 2017, upon a verdict convicting defendant of the crimes of attempted murderin the second degree, attempted assault in the first degree, assault in the second degree andoverdriving, torturing and injuring animals; failure to provide proper sustenance.
On September 24, 2016, a physical altercation took place in Broome County between currentand former members of the Flesh and Blood motorcycle club. During the melee, defendantallegedly fired a shotgun at the victim's van, causing injury to the victim and his dog. Inconnection therewith, defendant was charged by indictment with attempted murder in the seconddegree, attempted assault in the first degree, assault in the second degree and overdriving,torturing and injuring animals; failure to provide proper sustenance. Prior to trial, defendant filedan omnibus motion seeking, among other things, suppression of certain evidence seized from themotorcycle clubhouse. County Court summarily denied defendant's motion for lack of standing,finding that he failed to allege any personal privacy interest in the area searched. A jury trialensued, during which defendant raised a justification defense. Defendant was ultimatelyconvicted as charged and sentenced to concurrent prison terms of 12 years, with five years ofpostrelease supervision, on the convictions of attempted murder in the second degree andattempted assault in the first degree, and to lesser concurrent terms on the remaining convictions.Defendant appeals.
We affirm. Initially, defendant contends that the verdict is not supported by legally sufficientevidence and is against the weight of the evidence. "In conducting a legal sufficiency analysis,this Court views the evidence in the light most favorable to the People and evaluates whetherthere is any valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged" (People v Dickinson, 182 AD3d783, 783 [2020] [internal quotation marks and citations omitted], lv denied 35 NY3d1065 [2020]; see People v Rudge,185 AD3d 1214, 1215 [2020], lv denied 35 NY3d 1070 [2020]). By contrast, whenconducting a weight of the evidence review, this Court "must first determine whether, based onall the credible evidence, a different finding would not have been unreasonable and, if not, thenweigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence" (People vMeadows, 183 AD3d 1016, 1017 [2020] [internal quotation marks and citationsomitted], lv denied 35 NY3d 1047 [2020]; see People v Rahaman, 189 AD3d 1709, 1710-1711 [2020], lvdenied 36 NY3d 1059[*2][2021]).
As relevant here, a person commits attempted murder in the second degree when, "withintent to cause the death of another, [he or she] engage[s] in conduct that tend[s] to effect thecommission of that crime" (People vGreenfield, 167 AD3d 1060, 1061 [2018], lv denied 32 NY3d 1204 [2019];see Penal Law §§ 110.00, 125.25 [1]). As to attempted assault in thefirst degree, the People were required to prove that defendant, "[w]ith intent to cause seriousphysical injury to another[,] . . . attempted to cause such injury by means of a deadlyweapon or a dangerous instrument" (People v Watson, 174 AD3d 1138, 1139 [2019] [internal quotationmarks, ellipsis and citation omitted], lv denied 34 NY3d 955 [2019]; see PenalLaw §§ 110.00, 120.10 [1]; People v Conway, 179 AD3d 1218, 1219 [2020], lv denied35 NY3d 941 [2020]).[FN*]"Serious physical injury" means, as relevant here, "physical injury which creates a substantial riskof death, or which causes . . . serious and protracted disfigurement, protractedimpairment of health or protracted loss or impairment of the function of any bodily organ" (PenalLaw § 10.00 [10]). "Physical injury," in turn, means "impairment of physicalcondition or substantial pain" (Penal Law § 10.00 [9]). As to the charge of assault inthe second degree, the People were required to prove that defendant, "[w]ith intent to causephysical injury to another person, . . . cause[d] such injury to such person. . . by means of a deadly weapon or a dangerous instrument" (Penal Law§ 120.05 [2]). To convict defendant of overdriving, torturing and injuringanimals—a misdemeanor offense—the People were required to prove, as relevanthere, that defendant "unjustifiably injured, maimed, [or] mutilated" an animal (Agriculture andMarkets Law § 353; seePeople v Bowe, 61 AD3d 1185, 1186 [2009], lv denied 12 NY3d 923[2009]).
At trial, the victim testified that he was a former member of the motorcycle club, having beenremoved around March 2016 due to a monetary dispute. Following his departure, a disagreementarose concerning construction equipment that the victim believed the motorcycle club waswrongfully withholding from him. He testified that, on the afternoon of September 24, 2016, hewas standing in his driveway with a friend when he observed defendant's burgundy pickup truckslowly drive by. Another member of the club was sitting in the passenger seat and, according tothe victim, was leaning out of the window and waiving something that appeared to be a cameraor a gun. The truck then proceeded down the road and out of sight. A few minutes later, thevictim observed a silver car approach his residence, which contained another member of the clubwho was hanging out of the passenger window "brandishing something in the same manner." Thevictim testified that he put his dog in the passenger seat of his white utility van and pursued thesilver car, at one point stopping "nose to nose" with it on the side of the road. When the [*3]victim got out of the van to confront the driver, the silver car droveaway and the victim followed.
The victim proceeded to the motorcycle clubhouse, where he observed one of the membersattempting to hide behind a pickup truck. The victim testified that he grabbed a billy club and acan of pepper spray from his van, approaching the club member to confront him. Two more clubmembers came outside at that time and the victim admitted that he began hitting them with thebilly club to keep them in front of him. The victim then saw defendant run out of the clubhousewith another individual. The victim testified that he used pepper spray on the group and couldhear his dog barking in the car during the altercation. Realizing that he was outnumbered, thevictim retreated to his car, backed into the street and began to pull away. He then heard one ofthe club members say "shoot," and saw defendant run towards the van with a shotgun. The victimexplained that he pushed the dog's head down and heard the shotgun go off, knowing almostimmediately that he was hit based upon the blood he coughed up on the windshield. The victimthen drove to a nearby delicatessen, where he obtained help after a bystander called 911.
The People entered into evidence the surveillance video from the incident, which tended tocorroborate the victim's testimony. On the video, the victim can be seen pulling his van into theparking lot of the motorcycle clubhouse, with the outline of a dog shown in the passenger's seat.The victim then exits the vehicle with a billy club and walks toward the front of a burgundypickup truck. A member of the club exits the clubhouse with something in his hand and followsthe victim behind the pickup truck. The victim then backs up toward his van, with several clubmembers coming towards him. The victim begins hitting the club members with a billy club anddefendant runs outside of the clubhouse with a long pole in his hand, walking past thepassenger's side of the victim's van—where the outline of a dog can be seen—andtoward the victim, who is using pepper spray on the group. Defendant then runs back toward thefront of the clubhouse as the victim continues to use pepper spray and eventually walks back tohis van. The victim gets back into the driver's side of the van, one of the club members throwssomething at it, and the victim reverses the van to the left so that the passenger side is facingperpendicular to the front of the clubhouse. Defendant then runs into the frame with a shotgun,takes aim and shoots as the victim is moving the van forward to leave.
The witness testimony also supported the victim's recitation of the incident. In that respect, ahigh school student testified that she was at a nearby laundromat on the date of the incident whenshe saw "five or six guys coming down the street arguing," some of whom were carrying pipes.She observed a white van in the vicinity and, toward the end of the altercation[*4], heard one of the men say, "Where is my shotgun?" According tothis witness, the crowd then dispersed and one of the individuals got into the van and started toreverse it. At that point, the witness saw a dog pop its head up from the passenger side of the van,heard a shot and then heard someone yell "ow."
With respect to the nature of the victim's injuries, an emergency room physician testified thathe presented to the hospital with "a significant amount of blood . . . on his uppertorso and from the neck, chest and abdominal area down." The physician testified that the victimhad multiple penetrating gunshot wounds to his body, his pulse was "very fast" and severalshotgun pellets were located at the periphery of his right lung. The physician described the victimas appearing to be "in a significant amount of discomfort and pain," noting that he was havingtrouble breathing. Although not shown on an initial X ray, the physician suspected defendant hada pneumothorax (hereinafter a collapsed lung). A chest tube was eventually inserted, defendantwas intubated, and he was admitted to the hospital, where he remained for a week. The physicianexplained that "[m]ost people [do not] survive collapsing their lung" and a failure to provideaggressive treatment leads to an increased risk of morbidity and mortality. As to the dog'sinjuries, a witness who located the dog in the driver's seat after the shooting testified that,although the dog seemed calm when he approached, he noticed blood on his hands after pettingthe dog. A state trooper also recalled seeing blood on the dog following the incident, and thePeople entered into evidence pictures depicting small wounds on the top of the dog's head thatappear consistent with having been hit with shotgun pellets.
The People also played for the jury a portion of a video of defendant's investigatoryquestioning. On the video, defendant told investigators that, by the time he came out of theclubhouse, there was "glass on the ground" and the victim was already "on his way down theroad." He later changed his story, claiming that there was a fight and that he saw a bulge near thevictim's waistband, but nevertheless indicating that he did not know how the victim wasshot.
Members of the club testified on defendant's behalf, explaining that the victim had engagedin intimidating behavior three days prior to the incident. To that end, they testified that the victimshowed up at the motorcycle clubhouse on September 21, 2016 and began yelling "you're alldone" and "I'll be back, you watch." Defendant also took the stand, explaining that he had knownthe victim for approximately four years at the time of the incident and describing him as a "bully"who was known to carry weapons. Defendant explained that, after the victim was expelled fromthe club, the victim began engaging in intimidating behavior, including driving past defendant'shouse and staring at him in an aggressive manner. With respect [*5]to the encounter on September 21, 2016, defendant testified that hewas present when the victim was yelling at club members outside of the clubhouse, stating thatthe victim looked as if he was going to lunge at one of them and had a black bulge at hiswaistband. On that date, the victim was wearing a black denim vest with the name of a rival clubon it, which defendant found to be "very threatening." Defendant encountered the victim twicemore between September 21, 2016 and September 24, 2016—once while the victim waspumping gas and another time while stopped at a red light. According to defendant, the victimglared at him in an intimidating manner on both of those occasions.
As to the underlying incident on September 24, 2016, defendant explained that he saw thevictim outside of the clubhouse "smashing" one of the club members with a billy club. Defendantmaintained that, during the encounter, he heard an unidentified person yell, "He's got a gun,"prompting defendant to run inside of the clubhouse to get a shotgun. Defendant further testifiedthat, when he ran back outside, he saw the victim in the driver's seat pointing a gun at him andfeared for his life. Although defendant admitted to firing the shotgun in the victim's direction, hemaintained that he did not intend to kill or injure the victim, noting that he shot at the door. Hefurther testified that he did not see a dog in the van and had no intention of shooting a dog.
When viewing the evidence in the light most favorable to the People, there is a valid line ofreasoning and permissible inferences from which a rational jury could conclude that defendantcommitted all of the crimes charged (see People v Rudge, 185 AD3d at 1215; Peoplev Dickinson, 182 AD3d at 783). Accordingly, the verdict is based upon legally sufficientevidence. As to the weight of the evidence, a different verdict would not have been unreasonable.Nevertheless, when viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations, we conclude that the People proved the elements of the crimes beyond areasonable doubt (see People vSpeed, 134 AD3d 1235, 1236 [2015], lv denied 27 NY3d 1155 [2016]; People v Smith, 123 AD3d 450,451 [2014], lv denied 27 NY3d 1006 [2016]; People v Mullings, 23 AD3d 756, 758 [2005], lv denied 6NY3d 756 [2005]). Contrary to defendant's contention, his homicidal intent can be readilyinferred from his conduct of taking a direct shot at the victim from a relatively short distancewhile the victim was in the process of retreating (see People v Rahaman, 189 AD3d at1711; People v Meadows, 180AD3d 1244, 1247 [2020], lv denied 35 NY3d 994 [2020]; People v Conway,179 AD3d at 1219; People v Pine,126 AD3d 1112, 1115 [2015], lv denied 27 NY3d 1004 [2016]). Moreover, "[t]heabsence of a long-term serious injury to a victim does not preclude the finding of life-threateningactions by a defendant" (People vRyder, 146 AD3d 1022, 1024 [2017], lv denied [*6]29 NY3d 1086 [2017]), and the proof that the victim sufferedsymptoms associated with a collapsed lung, necessitating the placement of a chest tube andintubation, was sufficient to establish that defendant came "dangerously near" the commission ofthe completed crimes (People v Kassebaum, 95 NY2d 611, 618 [2001], certdenied 532 US 1069 [2001]).
Moreover, the People disproved defendant's justification defense beyond a reasonable doubt.The surveillance video clearly established that defendant ran toward the vehicle on his ownvolition and took the shot while the victim was in the process of driving away (see PenalLaw § 35.15 [2] [a]; People v Brown, 187 AD2d 312, 313 [1992], lvdenied 81 NY2d 837 [1993]). Although defendant testified that he feared for his life becausehe believed the victim was pointing a gun at him, the jury could reasonably reject defendant'sversion of the events, particularly where, as here, the surveillance video does not show the victimwith a gun or depict any of the club members scatter as if attempting to flee from one, defendantwas not forthcoming with police regarding his role in the shooting and defendant did not indicateduring his investigatory questioning that the victim pointed a gun at anyone during the encounter(see People v Allen, 183 AD3d1284, 1286 [2020], affd 36 NY3d 1033 [2021]; People v Every, 146 AD3d 1157, 1162 [2017], affd 29NY3d 1103 [2017]).
As to the remaining counts, we reject defendant's argument that the People did not establishthe physical injury component of assault in the second degree. The testimony that the victimappeared to be in significant pain and was having trouble breathing upon arriving at the hospital,where he remained for a week, was sufficient to establish the physical injury component of thiscrime (see Penal Law §§ 10.00 [9]; 120.05 [2]). With respect to thecharge of overdriving, torturing and injuring animals, the photographs depicting what appear tobe gunshot wounds on the dog's head and the testimony from a witness who described blood onhis hands after petting the dog sufficiently established the physical injury element of that crime.Although defendant testified that he had no knowledge of the dog's presence in the vehicle, thejury could reasonably discredit this contention, as the victim testified that he could hear the dogbarking during the altercation, defendant was standing within a few feet from the dog momentsbefore he fired the weapon, and an independent witness testified that she could see the dogimmediately prior to the shooting. Moreover, the fact that defendant lacked the intent to shoot thedog is irrelevant, as "there is no requirement that the person have a culpable mental state to befound guilty of violating [Agriculture and Markets Law § ] 353" (People v Robinson, 56 Misc 3d 77,79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], lv denied 30 NY3d 953[2017]; see Agriculture and Markets Law § 43; People v Basile, 40 Misc 3d 44, 46[[*7]App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013],affd 25 NY3d 1111 [2015]). Accordingly, the verdict on all counts is based upon legallysufficient evidence and is not against the weight of the evidence.
We are unpersuaded by defendant's claims of ineffective assistance of counsel. First, hefaults counsel for failing to assert that he had a reasonable expectation of privacy in theclubhouse in his pretrial suppression motion. This claim is unavailing since any such argumenthad little chance of success (see Peoplev Santana, 179 AD3d 1299, 1302 [2020], lv denied 35 NY3d 973 [2020];People v Rodriguez, 303 AD2d 783, 785-786 [2003]). Nor has defendant established thathe was deprived of meaningful representation with respect to the manner in which counselhandled a juror contact issue. On the third day of the trial, the prosecutor brought to CountyCourt's attention that one of the People's witnesses—a police investigator—hadbeen approached by a juror. Upon inquiry, the witness explained that, while he was waiting incourt to testify, a juror approached him and stated that he thought the prosecutor "was verymeticulous [and] . . . seemed to be doing a good job." When the juror started to talkabout the photographic evidence, the witness put his hand up and told the juror that "we can't talkabout this." In response to this information, defense counsel requested that the court provide thejury with a general admonition reminding the jurors not to discuss the case with anyone.Although defense counsel declined the court's offer to inquire of the particular juror directly,counsel did approve of the court's proposal to inform the jury that it had come to the court'sattention that a juror had improperly spoken to a witness that morning. The jury was soinstructed. Although the juror's conduct was inappropriate, "not every misstep by a sworn juror isindicative of substantial misconduct or renders the juror grossly unqualified" (People v Paulino, 131 AD3d 65,72 [2015], lv denied 26 NY3d 1042 [2015]). Given the limited nature of the juror contactand the fact that his statements were not indicative of bias, we cannot conclude that counsel'sdecision to seek only a general admonition deprived defendant of meaningful representation(see generally People v Buford, 69 NY2d 290, 299 n 4 [1987]; People v Montes, 178 AD3d 1283,1287-1288 [2019], lv denied 34 NY3d 1161 [2020]; People v Paulino, 131 AD3dat 72; People v Matiash, 197 AD2d 794, 796 [1993], lvs denied 82 NY2d 899[1993]).
We further reject defendant's contention that County Court committed reversible error indenying his request for a missing witness charge related to the People's failure to produce aradiologist who reported that he did not observe a collapsed lung on the victim's initial X ray. Asnoted above, the emergency room physician testified that he suspected that the victim suffered acollapsed lung and treated him accordingly. As such, the People did not need to [*8]call the radiologist as a witness. Moreover, the radiologist would beexpected to testify as to his medical findings, making him equally available to both sides (seegenerally People v Gonzalez, 68 NY2d 424, 427 [1986]).
Finally, we reject defendant's argument that the sentence imposed was harsh and excessive.The mere fact that the sentence imposed after trial was greater than the sentence offered duringplea negotiations does not support an inference that defendant was penalized for exercising hisright to trial (see People v Baber,182 AD3d 794, 802-803 [2020], lv denied 35 NY3d 1064 [2020]; People v Zi He Wu, 161 AD3d1396, 1398 [2018], lv denied 32 NY3d 943 [2018]). Although defendant had noprior criminal history and expressed remorse for his conduct, in light of the serious nature of thecrimes while the victim was attempting to retreat, we discern no abuse of discretion orextraordinary circumstances that would justify a reduction of the sentence in the interest ofjustice (see People v Meadows, 180 AD3d at 1249; People v Porter, 168 AD3d 1283, 1284 [2019], lv denied 33NY3d 1034 [2019]; People v Guzy,167 AD3d 1230, 1238 [2018], lv denied 33 NY3d 948 [2019]).
Garry, P.J., Clark, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:As with any attempt crime, thePeople were required to prove that defendant's conduct "came 'dangerously near' commission ofthe completed crime" (People v Kassebaum, 95 NY2d 611, 618 [2001], certdenied 532 US 1069 [2001]).