| People v Pitterson |
| 2007 NY Slip Op 08360 [45 AD3d 308] |
| November 8, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Delroy Pitterson, Appellant. |
—[*1] Delroy Pitterson, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered May 25, 2005,convicting defendant, after a jury trial, of assault in the first degree (two counts), attemptedassault in the first degree, assault in the second degree, and criminal possession of a weapon inthe second and third degrees, and sentenced him to an aggregate term of 20 years, unanimouslyaffirmed.
The evidence established that defendant fired shots at the victim and wounded her in thehand, after which he chased her and deliberately struck her with his van, causing further injuries.With respect to the assault committed by means of the van, there were two first-degree assaultcounts: intentional (Penal Law § 120.10 [1]) and depraved indifference (Penal Law§ 120.10 [3]). Without objection, the court submitted these counts in the conjunctive.Accordingly, defendant did not preserve his present argument that these counts were inconsistentand should have been submitted in the alternative (see People v Carter, 7 NY3d 875, 876 [2006]; People vMoloi, 135 AD2d 576, 577 [2d Dept 1987], lv denied 70 NY2d 1009 [1988]), andwe decline to review it in the interest of justice. Were we to review this claim, we would find thatthe counts are not inconsistent, because they involve different results. Although "a defendant whoacts with the conscious objective of bringing about a particular result cannot simultaneously actwith conscious disregard of a substantial and unjustifiable risk that the very result will occur,"(People v Trappier, 87 NY2d 55, 58 [1995]), the result accompanying the intentionalassault (Penal Law § 120.10 [1]) is serious physical injury, which can mean death or thesubstantial risk of death, but also can mean "serious and protracted disfigurement, protractedimpairment of health or protracted loss or impairment of the function of any bodily organ" (PenalLaw § 10.00 [10]), and the result accompanying depraved indifference assault (Penal Law§ 120.10 [3]) is a combination of serious physical injury and the reckless creationof a grave risk of death. Indeed, it is possible, as the jury found here, that defendant hit the victimwith the van while intending to seriously injure her as well as accomplishing that goal, whiledoing so in a manner that, in addition, recklessly created a grave risk of her death as well as [*2]causing serious physical injury. Therefore, the counts were notinconsistent, and were properly submitted in the conjunctive (see CPL 300.30 [5];People v Trappier, 87 NY2d at 59; People v Moloi, 135 AD2d at 577).
We also reject defendant's contention that his trial counsel was ineffective for failing topreserve the inconsistency issue (see People v Carter, 7 NY3d at 877). In any event, evenif we were to conclude that counsel should have raised this issue, we would find that his failureto do so did not cause defendant any prejudice.
The court properly declined to charge justification as a defense to the weapons possessioncounts (see People v Pons, 68 NY2d 264 [1986]; People v Almodovar, 62 NY2d126, 129-131 [1984]).
The court properly exercised its discretion in dismissing, at the prosecutor's request and overdefendant's objection, two counts charging defendant with reckless conduct relating to hisshooting of the victim. Since the shooting was clearly intentional, the court properly concludedthat submission of these counts "would probably interfere with, rather than advance, the jury'sperformance of its duty" (People vLeon, 7 NY3d 109, 114 [2006]). All of defendant's constitutional claims regarding thecourt's jury instructions and submission or dismissal of counts, and all of his pro se contentionsare unpreserved and we decline to review them in the interest of justice. Were we to review theseclaims, we would reject them. Concur—Mazzarelli, J.P., Marlow, Williams, Catterson andKavanagh, JJ.