| People v Hodgins |
| 2022 NY Slip Op 01208 [202 AD3d 1377] |
| February 24, 2022 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Hodgins, Appellant. |
Veronica Reed, Schenectady, for appellant.
Susan J. Mallery, District Attorney, Howes Cave (Kevin P. Mallery of counsel), forrespondent.
Egan Jr., J.P. Appeals (1) from a judgment of the County Court of Schoharie County (BartlettIII, J.), rendered February 6, 2019, upon a verdict convicting defendant of the crime ofmanslaughter in the second degree, and (2) by permission, from an order of said court, enteredMay 20, 2019, which denied defendant's motion pursuant to CPL 440.10 and 440.30 to vacate thejudgment of conviction.
On April 6, 2018, a verbal confrontation between two neighbors in the apartment buildingwhere defendant's four-year-old child lived occurred within earshot of the child. Defendant cameover after his work shift ended and, around 10:30 p.m., knocked on the door of one of thoseneighbors, Christopher Croote, to discuss the incident. Soon after Croote answered the door,defendant stabbed Croote's house guest (hereinafter the victim) in the neck near his collar bonewith a karambit style knife. The victim, who was bleeding heavily from a severed vein andartery, collapsed in the hallway between the two apartments and soon died. Several individualscalled 911 to report the incident, including defendant, who had retreated into the apartment of hischild's mother to avoid an enraged Croote. Defendant was taken into custody, and the knife wasrecovered.
Defendant was charged in an indictment with murder in the second degree and manslaughterin the second degree. Following a jury trial at which defendant testified that he stabbed the victimin self-defense after the victim and Croote, who he believed had a knife, attacked him, he wasacquitted of murder in the second degree but convicted of manslaughter in the second degree.County Court thereafter sentenced defendant to 4 to 15 years in prison. Defendant appeals fromthe judgment of conviction and, by permission, from the order denying his subsequent CPLarticle 440 motion.
We affirm. Defendant's challenge to the legal sufficiency of the evidence supporting theverdict is unpreserved given that he made a generalized motion to dismiss at the close of thePeople's case that he failed to renew at the close of his own case (see People v Rahaman, 189 AD3d1709, 1710 [2020], lv denied 36 NY3d 1059 [2021]; People v Splunge, 159 AD3d1136, 1136 [2018]). Nevertheless, because defendant also argues that the verdict was againstthe weight of the evidence, we will still ensure that the People established each element of thecrime (see People v Sorrell, 196AD3d 923, 923 [2021], lv denied 37 NY3d 1029 [2021]; People v Cooper, 196 AD3d 855,858 [2021], lv denied 37 NY3d 1160 [2022]).
Manslaughter in the second degree is established, in relevant part, with proof beyond areasonable doubt that a defendant "recklessly causes the death of another person" (Penal Law§ 125.15 [1]), meaning that he or she "is aware of and consciously disregards asubstantial and unjustifiable risk that" death will result from his or her conduct (Penal Law§ 15.05 [3]; see People vPeters, 126 AD3d 1029, 1030 [2015], lv denied 25 NY3d 991 [2015[*2]]). Further, where a defendant advances a justification defense, thePeople are obliged to "demonstrate beyond a reasonable doubt that [he or she] did not believedeadly force was necessary or that a reasonable person in the same situation would not haveperceived that deadly force was necessary" (People v Umali, 10 NY3d 417, 425 [2008], cert denied 556US 1110 [2009]; see Penal Law § 35.15 [1], [2]; People v Every, 146 AD3d 1157,1161 [2017], affd 29 NY3d 1103 [2017]). As a different verdict would not have beenunreasonable here, we "must weigh conflicting testimony, review any rational inferences thatmay be drawn from the evidence and evaluate the strength of such conclusions," then "decide[ ]whether the jury was justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,348 [2007]; see People v Sorrell, 196 AD3d at 923-924; People v Taylor, 163 AD3d 1275,1276 [2018], lv denied 32 NY3d 1068 [2018]). Although we review the evidence in aneutral light in making that assessment, "we also accord '[g]reat deference' to the jury's credibilitydeterminations, given that the jurors have the 'opportunity to view the witnesses, hear thetestimony and observe demeanor' " (People v Wilder, 200 AD3d 1303, 1304 [2021], quoting Peoplev Bleakley, 69 NY2d 490, 495 [1987]; see People v Romero, 7 NY3d 633, 644 [2006]).
Turning to that evidentiary review, several key facts were undisputed. First, conditions weretense in the apartment building at the time of the stabbing, with frequent squabbling betweenresidents, but there had been no problems between defendant, Croote or the victim beyond aminor incident in which defendant asked them to clean up their cigarette butts outside thebuilding and they did so. Second, when defendant knocked on Croote's door, Croote answered itwearing a climbing gaff—a spur attached to his calf and foot with leather straps that heintended to use while climbing utility poles in the course of his work—that he had beenshowing to the victim. Finally, defendant brought the knife when he went to confront Croote andused it to stab the victim. The factual disputes revolved around what transpired during theconfrontation and whether defendant acted in self-defense when he stabbed the victim.
In that regard, Croote and his girlfriend testified to what transpired after defendant knockedon the door. Croote, who denied that he had any knives within reach, stated that he opened thedoor to find defendant standing in an aggressive posture, his left hand clenched in front of himand his right hand behind his back at waist level. Defendant proceeded to confront him about theearlier incident, causing Croote to admit that he had sworn and yelled in front of defendant'schild, ask for a chance to tell the whole story, and then remove the gaff from his leg.[FN*] The victim stepped between thetwo men to block defendant from advancing toward Croote as he leaned over a few feet away,after which [*3]Croote heard a "shallow thud" as though someonehad been punched in the chest. Croote's girlfriend, who had been getting ready for bed but cameto investigate after hearing Croote yelling something, testified that she saw the victim put hishand toward defendant and turn to look at her, at which point defendant stabbed him in the neck"for no reason." Thereafter, Croote looked up to see defendant holding the blood-drenched knifein his hand, seemingly preparing to strike again, and the victim holding his left hand to the stabwound and punching defendant with his right hand. Defendant was quickly driven out of theapartment, with Croote demanding to know why he had brought a knife with him, and the victimcollapsed in the hallway.
The People also presented testimony from other residents in the apartment building as towhat they saw and heard during the confrontation. Croote's next-door neighbor testified that sheheard someone pounding on Croote's door and Croote crudely demanding to know why thevisitor had brought a knife, prompting her to peek out of her door to see defendant standing therewith a knife in his right hand. She then heard defendant reference the earlier incident with hischild and watched him lunge into the apartment with the knife, after which the mortally woundedvictim emerged from the apartment and punched defendant several times before collapsing in thehallway. The mother of defendant's child testified that she also heard much of the incident frominside her apartment, which included a voice she could not identify asking if defendant "want[ed]to go" and take it outside, then loud slams, a voice saying "something about a knife" anddefendant protesting that he was defending himself.
The foregoing proof reflects, notwithstanding some discrepancies in the order of events, thatdefendant was already holding the knife when he confronted an unarmed Croote and that hestabbed the victim after what several witnesses described as an invitation to go outside to settlematters. Defendant testified to a somewhat different version of events, stating that the knife wasin his pocket when he knocked on the door, that Croote behaved aggressively upon opening itand that Croote soon promised defendant that they were "going to go" and that he had "a knife, abig knife." Defendant added that the victim then got within a foot of him with fists clenched, alsourging him to "take this outside," and that he only pulled his knife after Croote and the victimhad punched him and Croote reached down and revealed what defendant thought was a sheathedknife strapped to his leg. The discrepancies in the testimony of the People's witnesses, as well asdefendant's divergent account of events, raised credibility issues to be resolved by the jury. Thatsaid, "[a]ccording deference to the jury's assessments and upon our own review of theevidence—including that pertaining to defendant's intent and his justificationdefense—we find no reason [*4]to disturb the verdict" (People v Vanderhorst, 117 AD3d1197, 1200 [2014], lv denied 24 NY3d 1089 [2014]; see People v Ramirez, 118 AD3d1108, 1111 [2014]; People vBrooks, 32 AD3d 616, 617 [2006], lv denied 8 NY3d 844 [2007]; People v Wilt, 18 AD3d 971, 972[2005], lv denied 5 NY3d 771 [2005]).
Defendant next argues that the People engaged in several instances of misconduct during thetrial and at sentencing but, to the limited extent that the issue is preserved for our review,"County Court responded appropriately to defense counsel's objections regarding the prosecutor'sconduct and we conclude that the prosecutor's overall conduct was not . . . a flagrantand pervasive pattern of prosecutorial misconduct entitling defendant to a new trial" (People v Wright, 88 AD3d 1154,1158 [2011] [internal quotation marks and citations omitted], lv denied 18 NY3d 863[2011]). We also do not agree with defendant that his trial counsel was ineffective in failing tomore vigorously challenge the examples of prosecutorial misconduct that defendant perceives or,for that matter, in any other respect. This was a difficult case in which defendant indisputablyinstigated an encounter that ended with him stabbing and killing the victim, and defense counselhandled it capably by advancing a cogent trial strategy that resulted in defendant being acquittedof the top count of the indictment, then successfully seeking to prevent County Court fromconsidering potentially prejudicial information in sentencing him. Thus, "when viewed intotality, we are satisfied that defendant received meaningful representation" (People v Rodriguez, 195 AD3d1237, 1242 [2021], lv denied 37 NY3d 1061 [2021]; see People v Mesko, 150 AD3d1412, 1414-1415 [2017], lv denied 29 NY3d 1131 [2017]; People v Molano, 70 AD3d 1172,1177 [2010], lv denied 15 NY3d 776 [2010]).
Defendant's arguments relating to sentencing are unavailing. Nothing in CPL 380.50 limits "asentencing court's discretionary authority to allow others close to the victim to address the courtat sentencing," and County Court providently exercised that discretion when, with the agreementof counsel, it considered written statements from the victim's father and stepmother whiledeclining to consider those submitted by his friends (People v Hemmings, 2 NY3d 1, 6[2004]; see People v Iovinella, 295 AD2d 753, 753 [2002], lv denied 99 NY2d536 [2002]). In the absence of any proof that County Court considered the other letters,defendant's speculation on that score does not overcome the presumption of regularity afforded tojudicial proceedings (see People v Turley, 267 AD2d 600, 601 [1999], lv denied94 NY2d 926 [2000]; People v Kalakowski, 120 AD2d 763, 765 [1986], lvdenied 68 NY2d 669 [1986]). Further, after considering the relevant factors, County Courtcited defendant's "horribly reckless" conduct in pulling and using the knife in imposing asentence of 4 to 15 years in prison, the lower bound of which was less than [*5]that authorized (see Penal Law § 70.00 [2] [c];[3] [b]). That sentence fell "within the statutorily authorized range" and, although defendantargues that it was harsh and excessive given his clean criminal record and expressed remorse, ourreview does not reveal either "a clear abuse of discretion or the existence of extraordinarycircumstances" that would warrant its modification in the interest of justice (People v Miller, 45 AD3d 1190,1191 [2007]; see People v Smith, 32AD3d 1082, 1082 [2006]).
Finally, defendant contended in his CPL article 440 motion that the prosecutor deprived himof a fair trial by improperly failing to disclose their prior acquaintance. Defendant alleged thattheir relationship amounted to the prosecutor chatting with defendant when she ran into him ather family's business, recusing from a case against him related to a 2017 traffic ticket, andinformally telling him how to file a petition in Family Court. Those allegations reflect thatdefendant and the prosecutor never had an attorney-client relationship in which the formerentrusted confidential information to the latter, and there was therefore neither an appearance ofimpropriety nor "actual prejudice arising from a demonstrated conflict of interest or a substantialrisk of an abuse of confidence" that would have warranted the prosecutor's disqualification(Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983]; see People v Adams, 20 NY3d608, 612 [2013]; People vJenkins, 186 AD3d 31, 36 [2020], lv denied 35 NY3d 1095 [2020]; People v Zinkhen, 89 AD3d 1319,1320 [2011], lv denied 18 NY3d 964 [2012]). Thus, even assuming that the issue couldnot "with due diligence by the defendant have readily been made to appear on the record in amanner providing adequate basis for review" upon his direct appeal (CPL 440.10 [3] [a]),defendant's CPL article 440 motion was properly denied without a hearing because he failed toallege essential facts to support his claim (see CPL 440.30 [4] [b]).
Lynch, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:Croote may not have beengenteel in making that admission, as his girlfriend recounted to investigators how he tolddefendant that "[n]obody meant any disrespect in front of your f***ing son."