| People v Wright |
| 2009 NY Slip Op 04821 [63 AD3d 1700] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jason L.Wright, 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 October 11, 2005. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the conviction of murder in the second degree (Penal Law § 125.25 [2]) tomanslaughter in the second degree (§ 125.15 [1]) and vacating the sentence imposed oncount two of the indictment and by vacating the sentence imposed on count four of theindictment and as modified the judgment is affirmed, and the matter is remitted to SupremeCourt, Monroe County, for sentencing on the conviction of manslaughter in the second degreeand for resentencing on the conviction of robbery in the first degree.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofmurder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) androbbery in the first degree (§ 160.15 [1]). We agree with defendant that the evidence islegally insufficient to support the conviction of depraved indifference murder. We note at theoutset that defendant preserved his contention for our review inasmuch as his motion for a trialorder of dismissal "specifie[d] the alleged infirmity" (People v Hawkins, 11 NY3d 484, 492 [2008]) by alerting SupremeCourt that the acts against the victim were intentional and manifested an intent to kill or to causeserious physical injury and that the jury therefore should not be charged on the count of depravedindifference murder (see generallyPeople v Jean-Baptiste, 11 NY3d 539, 542 [2008]; People v Feingold, 7 NY3d 288, 294 [2006]). Furthermore, indenying the motion, the court was "plainly . . . aware of, and expressly decided, thequestion raised on appeal" (Hawkins, 11 NY3d at 493).
We conclude that the evidence at trial established that the victim was beaten by defendantand two other individuals over a period of approximately 20 to 30 minutes and that he died as aresult of blunt force trauma. We agree with defendant that, although the acts against the victimmanifested an intent to harm him, the beating of the victim by defendant did not rise to the levelof "wanton cruelty, brutality or callousness directed against a particularly vulnerable victim,combined with utter indifference to the life or safety of the helpless target of [his] inexcusableacts" (People v Suarez, 6 NY3d202, 213 [2005]; cf. People v Poplis, 30 NY2d 85, 87-88 [1972]; People v [*2]Nunez, 51 AD3d 1398, 1399 [2008], lv denied 11NY3d 792 [2008]). Although the victim was left in a vacant lot by defendant and others, theabandonment of the victim does not by itself constitute depraved indifference murder inasmuchas " 'the core statutory requirement of depraved indifference is [not] established' " (People v Mancini, 7 NY3d 767,768 [2006]; see also People v Mills,1 NY3d 269, 275-276 [2003]).
We nevertheless conclude that the evidence is legally sufficient to support the lesserincluded offense of manslaughter in the second degree (Penal Law § 125.15 [1]; seeJean-Baptiste, 11 NY3d at 544; People v George, 11 NY3d 848, 850 [2008]; People v Atkinson, 7 NY3d 765,766-767 [2006]). The evidence presented at trial establishes that defendant intended to cause thevictim serious physical injury, and that his conduct created a substantial and unjustifiable riskthat the victim would not merely sustain serious physical injury, but would die (see People v Atkinson, 21 AD3d145, 151 [2005], mod 7 NY3d 765 [2006]; see generally People v Trappier,87 NY2d 55, 59 [1995]). We therefore modify the judgment by reducing the conviction ofmurder in the second degree to manslaughter in the second degree and vacating the sentenceimposed on count two of the indictment (see CPL 470.15 [2] [a]), and we remit thematter to Supreme Court for sentencing on the conviction of manslaughter in the second degree(see CPL 470.20 [4]).
Defendant further contends that the robbery count is duplicitous because he was chargedwith forcibly stealing "property, to wit, a BB gun and/or a pair of sneakers," which according todefendant were discrete thefts that occurred at different times and in different places. We rejectthat contention. The taking of those items occurred during the same criminal transaction (cf. People v Bauman, 51 AD3d316, 319 [2008], affd 12 NY3d 152 [2009]), and the nature of the property is not amaterial element of robbery (seegenerally People v Cash J.Y., 60 AD3d 1487, 1489 [2009]). We reject defendant'sfurther contention that the robbery conviction is not supported by legally sufficient evidence. Weagree with defendant that the evidence at trial does not support a finding that he intendedpermanently to deprive the victim of the BB gun that he removed from the victim's waistbandand dropped to the ground. We nevertheless conclude, viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), that there is avalid line of reasoning and permissible inferences to support a finding that defendant forciblystole the victim's sneakers (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Viewing the evidence in light of the elements of the crime of robbery in the first degree ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict with respectto that crime is not against the weight of the evidence (see generally Bleakley, 69 NY2dat 495).
We reject the contention of defendant that he was denied effective assistance of counsel.Viewing the evidence, the law and the circumstances of the case as a whole and as of the time ofthe representation, we conclude that defendant was afforded meaningful representation (seegenerally People v Benevento, 91 NY2d 708, 712-713 [1998]). We note, however, that thereis a discrepancy between the sentencing minutes, wherein the court erred in imposing anindeterminate term of imprisonment on the robbery count (see Penal Law § 70.04[2]), and the certificate of conviction, which appears to correct the error by imposing adeterminate term of imprisonment on that count. Inasmuch as the record does not reflect whetherdefendant was resentenced, we further modify the judgment by vacating the sentence imposed oncount four of the indictment, and we direct Supreme Court upon remittal to resentence defendanton the conviction of robbery in the first degree.
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Fahey, Peradotto, Carni and Green, JJ.