| People v Hawkins |
| 2008 NY Slip Op 01238 [48 AD3d 1279] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Bryan R.Hawkins, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered June 24, 2003. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree (two counts) and burglary in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of twocounts of murder in the second degree (Penal Law § 125.25 [2], [3] [depraved indifferencemurder and felony murder, respectively]) and one count of burglary in the second degree (§140.25 [2]). Defendant failed to preserve for our review his contention that the evidence islegally insufficient to support the conviction of depraved indifference murder on the ground thatthe evidence established an intentional murder and no other crime. In support of his motion for atrial order of dismissal of that count at the close of the People's case, defendant contended "thatthe People . . . failed to prove a prima facie case of [d]epraved [i]ndifference[m]urder" and that, "[n]ot only [did] they fail to prove a prima facie case that [defendant] was theperpetrator of the homicide[,] . . . they failed to prove that [defendant] acted with[d]epraved [i]ndifference." It is well established that, "even where a motion to dismiss forinsufficient evidence [is] made, the preservation requirement compels that the argument be'specifically directed' at the alleged error" (People v Gray, 86 NY2d 10, 19 [1995],quoting People v Cona, 49 NY2d 26, 33 n 2 [1979]; see also People v Montes,225 AD2d 1052 [1996], lv denied 88 NY2d 882 [1996]). It is unclear whetherdefendant's motion for a trial order of dismissal was directed at the alleged legal insufficiency ofthe evidence of recklessness or at the depraved indifference factual setting in which the murdertook place. In either event, defendant failed to preserve for our review his present contention thatthe evidence is legally insufficient to support the conviction of depraved indifference murder. Wenote that defendant was not charged with intentional murder, and thus it cannot be said thatdefense counsel would have been reticent to base his motion for a trial order of dismissal on thecontention that, if defendant committed murder, he committed it intentionally rather thanrecklessly.
We reject defendant's further contention that Supreme Court erred in admitting in [*2]evidence a blood sample based on an allegedly inadequate chain ofcustody for that sample. Contrary to defendant's contention, the evidence " 'sufficientlyestablished the authenticity of that evidence through reasonable assurances of identity andunchanged condition' . . . , and [thus] any irregularities in the chain of custody wentto the weight of the evidence rather than its admissibility" (People v Washington, 39 AD3d 1228, 1230 [2007], lv denied9 NY3d 870 [2007]; see People vMadison, 8 AD3d 956, 957 [2004], lv denied 3 NY3d 709 [2004]; seegenerally People v Julian, 41 NY2d 340, 343-344 [1977]).
Additionally, by failing to object to the court's ultimate Sandoval ruling, defendantfailed to preserve for our review his contention that the court abused its discretion in permittingthe People to cross-examine him with respect to the existence, but not the underlying facts, oftwo of his four prior burglary convictions (see People v Hawkes, 39 AD3d 1209 [2007], lv denied 9NY3d 845 [2007]; People v Robles,38 AD3d 1294, 1295 [2007], lv denied 8 NY3d 990 [2007]). In any event, weconclude that "those convictions involve 'acts of individual dishonesty' . . . , and thecourt's ruling thus does not constitute an abuse of discretion" (Robles, 38 AD3d at 1295;see People v Sandoval, 34 NY2d 371, 377 [1974]). Finally, the sentence is not undulyharsh or severe.
All concur except Scudder, P.J., and Green, J., who dissent in part and vote to modify inaccordance with the following memorandum.
Scudder, P.J., and Green, J. (dissenting in part). We respectfully dissent in part. We disagreewith the majority that defendant failed to preserve for our review his contention that the evidenceis legally insufficient to support the conviction of depraved indifference murder (Penal Law§ 125.25 [2]), and we agree with defendant that the evidence is legally insufficient withrespect to that crime. We therefore would modify the judgment by reversing that part convictingdefendant of murder in the second degree under count one of the indictment and dismissing thatcount of the indictment.
At trial, the People presented the tape of a 911 call establishing that defendant entered thevictim's home by breaking a window with a hammer and that the victim yelled at defendant to getout of his house and to "let go," after which the victim was heard groaning. They also presentedevidence establishing that the victim had six lacerations on his head, including one laceration thatexposed brain matter, that he had multiple bruises on his brain and extensive hemorrhagingaround it, and that he died from blunt head trauma. Where, as here, "there is no record support. . . for the jury's decision that [the] defendant's conduct . . . wasreckless and depraved, rather than intentional, the jury's finding of depraved indifference murdercannot be upheld" (People v Hafeez, 100 NY2d 253, 256 [2003]; see People v Suarez, 6 NY3d 202,208-210 [2005]; People v Gonzalez,1 NY3d 464, 466-468 [2004]).
We recognize that defendant could not preserve for our review his contention with respect tothe alleged legal insufficiency of the evidence of depraved indifference murder simply by movingfor a trial order of dismissal on the general ground that the People failed to prove a prima faciecase of depraved indifference murder (see People v Finger, 95 NY2d 894, 895 [2000]).Here, however, in addition to raising the general ground that the People failed to prove "a primafacie case of depraved indifference murder," defendant moved for a trial order of dismissal on thegrounds that the People failed to prove that he was the perpetrator of the murder and failed toprove that the perpetrator "acted with [d]epraved [i]ndifference." It of course is assumed thatSupreme Court was aware of the elements of depraved indifference murder and thus would haverecognized that the motion was addressed to the legal insufficiency of the evidence with respectto the state of mind and nature of the conduct of the perpetrator. Thus, in our view, defendantsatisfied the requirement set forth by the Court of Appeals in People v Gray (86 NY2d10, 19 [1995]), i.e., that his argument be " 'specifically directed' at the alleged error," therebybringing to the attention of the court his contention that the People failed to prove essentialelements of the crime of depraved [*3]indifference murder(see id.; cf. Finger, 95 NY2d at 895; People v Acevedo, 44 AD3d 168, 172 [2007], lv denied 9NY3d 1004 [2007]).
We find of great significance the fact that the decision of the Court of Appeals in People v Payne (3 NY3d 266[2004], rearg denied 3 NY3d 767 [2004]) supports our determination herein thatdefendant preserved his contention for our review. The defendant in Payne was acquittedof intentional murder and convicted of depraved indifference murder and, according to JudgeRead's dissent in that case, the defendant had moved to dismiss the count charging depravedindifference murder on the ground " 'that one shot from a shotgun is not depraved indifferenceaction as . . . contemplated by the legislature and enunciated by the courts in theirdecisions throughout the years' " (id. at 278). In our view, the basis for that motion isessentially the same as the basis for the motion made by defendant herein, inasmuch as the stateof mind and nature of the conduct are incorporated in the phrase "depraved indifference action"(id.). The majority in Payne did not specifically discuss the contents of themotion and whether it was specific enough pursuant to Gray (86 NY2d at 19) to preservethe defendant's contention for appellate review. Nevertheless, in response to the dissent's positionthat the contention of the defendant was not preserved for appellate review because the defendantfailed to renew his motion after presenting evidence (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]), the majority wrote that, "contrary to thedissent, defendant has preserved his claim that he did not commit depraved indifference murder"(Payne, 3 NY3d at 273). Thus, in our view, it is implicit in the Court's decision inPayne that, where, as here, a motion for a trial order of dismissal addresses the failure toprove that the defendant acted with depraved indifference, the defendant has preserved forappellate review his contention that the evidence is legally insufficient to support a conviction ofdepraved indifference murder (cf.People v Danielson, 40 AD3d 174, 176 [2007], affd 9 NY3d 342 [2007];Acevedo, 44 AD3d at 172).
We recognize the concern expressed by the First Department that, because the Court ofAppeals has now clarified the distinction between depraved indifference murder and intentionalmurder (see Suarez, 6 NY3d at 208-210; Gonzalez, 1 NY3d at 468-469;Hafeez, 100 NY2d at 256), there has been "a surge of incarcerated defendants eager to'confess' to intentional homicide as a way of having their convictions for depraved indifferencemurder reversed while secure in the knowledge that the Double Jeopardy Clauses of the Federaland State Constitutions bar their retrial for intentional murder" (Acevedo, 44 AD3d at171). Here, however, defendant was charged with depraved indifference murder and felonymurder, and he denies that he killed the victim. Thus, the contention of defendant on this appealthat the jury should not have been charged on the count of depraved indifference murder is not an" 'unseemly assertion that he is entitled to relief because he intentionally murdered the victim,rather than having recklessly caused his death' " (id. at 172).
In sum, the majority is imposing a requirement that defendant explain to the court not onlywhat the People failed to prove, i.e., depraved indifference murder, but also what thePeople instead proved, i.e., the uncharged crime of intentional murder. Present—Scudder,P.J., Martoche, Lunn, Peradotto and Green, JJ.