| People v Hymes |
| 2010 NY Slip Op 01156 [70 AD3d 1371] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James C.Hymes, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered June1, 2005. The judgment convicted defendant, upon a jury verdict, of attempted murder in thesecond degree, criminal possession of a weapon in the second degree, and reckless endangermentin the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), criminalpossession of a weapon in the second degree (§ 265.03 [former (2)]), and recklessendangerment in the first degree (§ 120.25). Defendant made only a general motion for atrial order of dismissal (see People v Gray, 86 NY2d 10, 19 [1995]), and he failed torenew his motion after presenting evidence (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]). He therefore failed to preserve for our review hiscontention that the evidence is legally insufficient to support the conviction of criminalpossession of a weapon in the second degree. In any event, that contention is without merit. Thevictim testified that, when defendant approached him from across the street while the victim wasstanding near his car, defendant displayed a silver gun with a brown handle and then fired thegun at him. A gun matching that description was subsequently recovered near the scene of theshooting. Although one of the codefendants testified for defendant that the gun in question wasowned by the codefendant, the jury was entitled to reject that testimony and could havereasonably inferred that defendant either discarded the gun when he fled the scene or gave it tothe codefendant, who in turn discarded it (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Defendant's further contention that the evidence is legally insufficient toestablish that the weapon was operable is also without merit (see generally id.).
We reject the contention of defendant that County Court erred in dismissing a juror over hisobjection. The record establishes that the juror admitted to the court that she had been sleepingduring the testimony of the victim and that she had missed "a lot" of the testimony. It is wellestablished that "[a] juror who has not heard all the evidence is grossly unqualified to render averdict" (People v [*2]Williams, 202 AD2d 1004, 1004[1994] [internal quotation marks omitted]). Defendant further contends that the court erred indenying his motion for a mistrial following an incident in which a Sheriff's Deputy dressed incivilian attire placed his hand on defendant and pulled defendant toward him while jurors wereexiting the courtroom and passing between defendant, who was standing next to defense counsel,and the Sheriff's Deputy. We reject that contention inasmuch as the proximity of the jurors todefendant "warranted caution and [thus the actions of the Sheriff's deputy constituted] anappropriate security measure for the courtroom" (People v Vargas, 88 NY2d 363, 377[1996]; see generally People v Riley, 292 AD2d 822, 823-824 [2002], lv denied98 NY2d 640 [2002]).
Defendant contends that he was denied a fair trial as a result of prosecutorial misconduct onsummation. Defendant preserved that contention for our review with respect to only two of theprosecutor's remarks (see CPL 470.05 [2]). We nevertheless conclude that all of theallegedly improper remarks constituted fair comment on the evidence or a fair response todefense counsel's summation (see generally People v Halm, 81 NY2d 819, 821 [1993]),and that they "did not exceed the broad bounds of rhetorical comment permissible [onsummation]" (People v Galloway, 54 NY2d 396, 399 [1981]).
Finally, we conclude that the court properly refused to charge attempted assault in thesecond degree (Penal Law §§ 110.00, 120.05 [1], [2]) as a lesser included offense ofattempted murder in the second degree. The record is unclear whether the court considered therequest with respect to attempted assault in the second degree pursuant to subdivision (1) or (2)of section 120.05. Attempted assault in the second degree pursuant to section 110.00 andsubdivision (2) of section 120.05 is not a lesser included offense of attempted murder in thesecond degree pursuant to sections 110.00 and 125.25 (1) inasmuch as subdivision (2) of section120.05 requires an injury caused "by means of a deadly weapon or a dangerous instrument,"which is not an element of attempted murder in the second degree. "It is thus possible to commitattempted murder in the [second] degree without concomitantly, by the same conduct,committing attempted assault in the second degree" pursuant to sections 110.00 and 120.05 (2)(People v Carter, 38 AD3d1291, 1292 [2007]; see People vSmith, 13 AD3d 1121, 1122 [2004], lv denied 4 NY3d 803 [2005]). Althoughattempted assault in the second degree pursuant to section 110.00 and subdivision (1) of section120.05 is a lesser included offense of attempted murder in the second degree pursuant to sections110.00 and 125.25 (1) (see Smith, 13 AD3d at 1122), we conclude that the courtproperly determined that there was no "reasonable view of the evidence . . . thatwould support a finding that [defendant] committed the lesser offense but not the greater"(People v Glover, 57 NY2d 61, 63 [1982]). Indeed, the evidence established that thepolice recovered shell casings and spent bullets demonstrating that at least 26 shots were fired atthe victim and his vehicle, in which his 10-year-old nephew was seated.Present—Scudder, P.J., Smith, Fahey and Lindley, JJ.