| People v Naradzay |
| 2008 NY Slip Op 03751 [50 AD3d 1489] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JasonNaradzay, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County, (John J. Brunetti, A.J.),rendered October 25, 2004. The judgment convicted defendant, upon a jury verdict, of attemptedmurder in the second degree (two counts), attempted burglary in the first degree, and criminalpossession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of twocounts of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]),and one count each of attempted burglary in the first degree (§§ 110.00, 140.30 [1])and criminal possession of a weapon in the fourth degree (§ 265.01 [2]), defendantcontends that the evidence is legally insufficient to support the conviction with respect toattempted murder and attempted burglary and that, instead, the evidence in support of thosecrimes was based on "pure conjecture." We reject that contention.
The People presented evidence at trial that defendant planned to kill a femaleacquaintance and her husband and that, when the police arrived at the scene in response to a 911telephone call reporting that there was a man with a shotgun in a specified neighborhood,defendant approached the police and stated that he has "mental problems." When the policeasked defendant if he had any weapons, he replied that he had a shotgun and pointed to it. Theshotgun was resting on a snowbank, about 5 to 10 feet away from where defendant was standing.The police then handcuffed defendant, retrieved the weapon and determined that it was loadedwith four rounds of ammunition. The People further presented evidence that defendant told anewspaper reporter, after the fact, that his intention was to "slay the husband and wife and havetheir children watch." Furthermore, the police found on defendant's person a handwritten note,i.e., a "to-do list," prepared by defendant. The "to-do list" contained a step-by-step plan forbreaking into the residence and killing the couple in front of their children."A person is guilty of an attempt to commit a crime when, with intent to commit acrime, he [or she] engages in conduct which tends to effect the commission of such crime" (PenalLaw § 110.00). It is well established that conduct tends to effect the commission of a crimewhen it brings the perpetrator "so near to its accomplishment that in all reasonable probability thecrime [*2]itself would have been committed but for timelyinterference" (People v Rizzo, 246 NY 334, 337 [1927]; see generally People vKassebaum, 95 NY2d 611, 618 [2001], cert denied 532 US 1069 [2001], reargdenied 96 NY2d 854 [2001]; People v Di Stefano, 38 NY2d 640, 652 [1976]). "It isdifficult, if not impossible, to lay down any general rule by which it can be determined whether[conduct is] too remote to constitute an attempt to commit the offense" (People vSullivan, 173 NY 122, 135 [1903]). Such a determination "depends greatly on the facts ofthe particular case" (People v Mahboubian, 74 NY2d 174, 190 [1989]). The Court ofAppeals has written that, although the act generally must go beyond "mere preparation"(People v Bracey, 41 NY2d 296, 300 [1977], rearg denied 41 NY2d 1010[1977]), "[t]he act need not be 'the final one towards the completion of the offense' " (id.,quoting Sullivan, 173 NY at 133).In support of his contention that the conviction of attempted burglary and attempted murderwas based on conjecture rather than the requisite legally sufficient evidence, defendant reliesupon a series of cases involving attempted murder in the first degree, wherein the defendants hadpointed firearms at police officers (see People v Acevedo, 256 AD2d 162 [1998], lvdenied 93 NY2d 921 [1999]; People v Chandler, 250 AD2d 410 [1998]; People vMendez, 197 AD2d 485 [1993], lv denied 83 NY2d 807 [1994]). In those cases, itwas determined that the conviction of attempted murder had to be supported both by evidencethat the defendant aimed a loaded weapon at a police officer and by evidence that the defendantalso "engaged in conduct consistent with shooting" the weapon, such as having a finger on thetrigger (People v Smith, 32 AD3d1318, 1319 [2006], lv denied 7 NY3d 929 [2006]; see Mendez, 197 AD2d at485). Defendant's reliance on those cases thus is misplaced, because in those cases the intent tokill can only be inferred from the totality of the defendant's acts, which might otherwise beexplained as being intended to enable the defendant to flee rather than to kill the officer. Theanalysis of an attempt crime differs, however, when the defendant's "criminal intent is beyondperadventure" (People v Trepanier, 84 AD2d 374, 376 [1982]; see generally People vSabo, 179 Misc 2d 396, 401-405 [1998]), as it is in this case.
Here, the People presented evidence that defendant formed and, indeed, documented hiscriminal intent by his "to-do list," and that he purchased a shotgun and 25 shells, borrowed avehicle, drove to the neighborhood of his intended victims with the shotgun and shells, removedthe trigger-lock on the weapon, loaded the shotgun with four rounds of ammunition, exited thevehicle with the loaded shotgun, and walked to the edge of the intended victims' property. Weconclude that, by that point, defendant's actions had gone far beyond mere preparation but, rather,had become "potentially and immediately dangerous . . . [and] 'had gone to theextent of placing it in [his] power to commit the offense unless interrupted' "(Mahboubian, 74 NY2d at 191, quoting People v Sobieskoda, 235 NY 411, 419[1923]). Contrary to the view of our dissenting colleague, the fact that defendant never set footon the property of the intended victims or pointed the shotgun at them is not dispositive of theissue whether the evidence is legally sufficient to establish whether defendant committed eitherattempted murder or attempted burglary. Moreover, unlike the facts in Rizzo, here,defendant knew exactly where his intended victims could be found (see 246 NY at 339).Thus, the evidence, viewed in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), provided a "valid line of reasoning and permissibleinferences [that] could lead a rational person to the conclusion reached by the fact finder on thebasis of the evidence at trial" (People v Williams, 84 NY2d 925, 926 [1994]).Contrary to defendant's further contention, Supreme Court properly refused to suppressdefendant's handwritten "to-do list" and certain statements made by defendant at the scene beforehe was advised of his Miranda rights. Addressing first defendant's statements, weconclude that they were responses to threshold inquiries by the police that were "intended toascertain the nature of the situation during initial investigation of a crime, rather than to elicitevidence of a crime" (People v Morales, 216 AD2d 154, 154 [1995]; see generallyPeople v Huffman, 41 NY2d 29, 34 [1976]), and those statements thus were not subject tosuppression (see People v [*3]Madore, 289 AD2d 986[2001], lv denied 97 NY2d 757 [2002]; People v Harris, 272 AD2d 225 [2000],lv denied 95 NY2d 935 [2000]). Further, the police had probable cause to believe thatdefendant possessed the shotgun with the intent to use it unlawfully because he told the policethat he was at the scene because "[t]his bitch f—ed [him] over." The police thus hadprobable cause to arrest defendant (see generally People v Bigelow, 66 NY2d 417, 423[1985]), and the "to-do list" was lawfully seized as incident to a lawful arrest (see People vWeintraub, 35 NY2d 351, 353-354 [1974]).
All concur except Green, J., who dissents in part and votes to modify in accordance with thefollowing memorandum.
Green, J. (dissenting in part). I respectfully dissent in part. Contrary to the view of themajority, I do not believe that the evidence is legally sufficient to support the conviction ofattempted murder in the second degree or attempted burglary in the first degree. As the majoritycorrectly notes, section 110.00 of the Penal Law provides that "[a] person is guilty of an attemptto commit a crime when, with intent to commit a crime, he [or she] engages in conduct whichtends to effect the commission of such crime." Although I agree with the majority that thedetailed "to-do list" seized from defendant at the scene and his statements following his arrestestablish that he planned and intended to commit burglary and murder, "[t]his alone isinsufficient . . . to establish criminal liability for attempt" (People vTrepanier, 84 AD2d 374, 376 [1982]). As noted, Penal Law § 110.00 also requiresproof of conduct tending to effect the commission of the intended crime or crimes. "[I]t must beproven that the defendant acted to carry out his intent. The law does not punish evil thoughts"(People v Bracey, 41 NY2d 296, 300 [1977], rearg denied 41 NY2d 1010[1977]). Further, the conduct "constituting an attempt [must come] very near to theaccomplishment of the crime" (People v Rizzo, 246 NY 334, 337 [1927]) or"dangerously near" thereto (id. at 338; see People v Acosta, 80 NY2d 665, 670[1993]; People v Mahboubian, 74 NY2d 174, 190 [1989]; People v Di Stefano,38 NY2d 640, 652 [1976]).
Here, defendant's conduct did not come "very near" or "dangerously near" to the commissionof the intended burglary or murders. According to the evidence presented at trial, a witnessobserved defendant walking in the vicinity of the residence of the intended victims. That witnesscalled 911, and the police officer dispatched to the scene observed defendant some distance awayfrom the driveway leading to the rear of the residence of the intended victims, and defendant'sshotgun was lying on a snowbank 5 to 10 feet away from defendant. There was no evidence thatdefendant ever set foot on the property of the intended victims, nor was there evidence that hepointed the shotgun at either intended victim. Indeed, defendant was never in the presence of theintended victims and, according to the evidence presented at trial, one of the intended victimswas out of town at the time of the incident.
It has been held that evidence of conduct far closer to the accomplishment of a murder, i.e.,pointing a loaded pistol at a police officer, is legally insufficient to support a conviction ofattempted murder absent further "proof that the defendant had his finger on the trigger. . . , or otherwise came ' "very near to the accomplishment of the intended crime" ' "(People v Mendez, 197 AD2d 485, 485 [1993], lv denied 83 NY2d 807 [1994],quoting Di Stefano, 38 NY2d at 652; see People v Chandler, 250 AD2d 410[1998]). Such further proof was presented in People v Acevedo (256 AD2d 162 [1998],lv denied 93 NY2d 921 [1999]), in which the conviction of attempted murder wasupheld. Significantly, the Court of Appeals has written that "a man [would not] be guilty of anattempt to commit a murder if he armed himself and started out to find the person whom he hadplanned to kill but could not find him" (Rizzo, 246 NY at 339; People v Sullivan,173 NY 122, 135-136 [1903]), and the Court further wrote in Rizzo that "[m]en wouldnot be guilty of an attempt at burglary if they had planned to break into a building and werearrested while they were hunting about the streets for the building not knowing where it was"(id. at 338-339; see Sullivan, 173 NY at 135). I therefore would modify thejudgment by reversing those parts convicting defendant of attempted murder in the second degreeand attempted burglary in the first degree and dismissing counts one, two and six of theindictment, and I would remit the matter to Supreme Court for [*4]proceedings pursuant to CPL 470.45. Present—Scudder, P.J.,Centra, Lunn, Fahey and Green, JJ.