| People v Hull |
| 2010 NY Slip Op 02444 [71 AD3d 1336] |
| March 25, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Glenford C.Hull, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi, for respondent.
Garry, J. Appeals (1) from a judgment of the County Court of Delaware County (Becker, J.),rendered December 11, 2006, upon a verdict convicting defendant of the crime of murder in thesecond degree, and (2) by permission, from an order of said court, entered February 6, 2009,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In February 2006, the victim resided with his family in a first floor apartment in the Town ofMeredith, Delaware County. Defendant and his 12-year-old daughter resided in the second floorapartment overhead. One evening, an alleged misunderstanding regarding noise escalated into aconflict between the victim and defendant, with the two of them shouting back and forth at eachother.[FN1]At one point the victim ran up the stairs, and was shouting and pounding on defendant's lockeddoor. Defendant retrieved a loaded Ruger single-action .357 magnum revolver from hisbedroom, and he and his daughter stepped into the hallway. At that time, the victim had returneddownstairs, but began to re-ascend the stairs while he, defendant, [*2]and defendant's daughter continued to argue. When the victimneared the top of the stairs, defendant—still holding the gun—raised his hands inwhat he claims was an attempt to push the victim away. The gun fired, striking the victim in thehead and killing him.
Defendant was indicted on one count of murder in the second degree and, after a jury trial,was found guilty as charged and sentenced to a prison term of 22 years to life. County Courtdenied defendant's subsequent motion pursuant to CPL 440.10 to vacate his judgment ofconviction. Defendant appeals from the judgment of conviction and, by permission, from thedenial of his CPL 440.10 motion.
Initially, defendant contends that the verdict was against the weight of the evidence because,although he concedes the act of shooting the victim, he contends that the proof of his mentalstate was entirely circumstantial and the evidence was logically inconsistent with an intent to killthe victim. We must first determine whether a different verdict would have been reasonable(see People v Bleakley, 69 NY2d 490, 495 [1987]). If so, we " 'must, like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " (People v Perser, 67 AD3d 1048,1049 [2009], lv denied 13 NY3d 941 [2010], quoting People v Romero, 7 NY3d 633, 643 [2006]). The evidenceestablished that a former friendship between defendant and the victim had broken down intofrequent arguments in which, according to defendant, the victim had previously threatened himand had "harassed" his daughter. Defendant testified that he did not intend to shoot the victim,did not cock the hammer on his single-action revolver before or during the confrontation, and didnot pull the trigger. He claimed that his hands were slippery, his finger was in the trigger guard,and the gun discharged accidentally when the victim struck it with his arm. However, a firearmsexpert called by the People testified that defendant's gun could not be fired unless the hammerhad been manually cocked and the trigger was pulled.[FN2]Defendant's daughter, the only eyewitness, first testified that she saw defendant pull the trigger,but later testified that she could not see his finger. After the shooting, defendant told a 911operator, "I shot my neighbor," and told a police officer, "I shot my friend." While we find thatan acquittal would not have been unreasonable, we further find that "viewing the evidence in aneutral light and giving great deference to the factfinder's opportunity to view witnesses andobserve their demeanor" (People vPeryea, 68 AD3d 1144, 1147 [2009]), the guilty verdict was not against the weight ofthe evidence.
Defendant asserts that he received ineffective assistance of counsel as the result of multipleerrors committed by his trial attorney. Evaluation of his contention requires us to determinewhether " 'the evidence, the law, and the circumstances of [the] particular case, viewed in totalityand as of the time of the representation, reveal that the attorney provided meaningfulrepresentation' " (People v Benevento, 91 NY2d 708, 712 [1998], quoting People vBaldi, 54 NY2d 137, 147 [1981]; see People v Blanchard, 63 AD3d 1291, 1292 [2009], lvdenied 13 NY3d 794 [2009]). Defendant claims, first, that his counsel erred in failing tohave his revolver tested and in failing to call an expert gunsmith to testify about the likelihoodthat it could have accidentally discharged. During the trial, defendant's counsel attempted tocross-examine the People's firearms expert about a safety recall involving an alleged propensityof the weapon to [*3]discharge accidentally. The expert proved tobe unfamiliar with the subject, and County Court advised that counsel would have to present hisown evidence on this point. Counsel responded that he intended to call his own gunsmith, butthen did not do so.
Defendant's CPL 440.10 motion included the affidavit of a licensed professional gunsmithwho opined that the revolver could have discharged accidentally in the manner defendantreported. The gunsmith described several ways in which the model of revolver that defendantwas using could have discharged even if the hammer had not been manually cocked, and statedthat the manufacturer redesigned a later model of the revolver to decrease the likelihood ofunintentional discharges. He further opined that the sensitivity of the primer and hammer springon the cartridge loaded in the revolver could have affected the likelihood of an accidentaldischarge and should have been tested. While "the failure to call a particular witness does notnecessarily amount to ineffective assistance of counsel" (People v Muller, 57 AD3d 1113, 1114 [2008], lv denied 12NY3d 761 [2009]; see People v Hobot, 84 NY2d 1021, 1024 [1995]), this testimonywould have been directly pertinent to defendant's primary defense, and would not have beenduplicative. Moreover, the affidavit of defendant's trial counsel submitted with the CPL 440.10motion did not reveal any "strategic or other legitimate explanation" for the failure to call afirearms expert (People v Heath, 49AD3d 970, 974 [2008], lv denied 10 NY3d 959 [2008]; see People v Carralero, 9 AD3d790, 792 [2004], lv denied 4 NY3d 742 [2004]).
Further, defendant's counsel erred in failing to object to the portions of the People'scross-examination regarding defendant's membership in a gun owners' association, subscriptionto a hunting magazine, and beliefs in gun ownership rights.[FN3]The questioning was offered to inflame the jury (see People v Pyne, 223 AD2d 910, 911[1996], lv denied 88 NY2d 940 [1996]).
Defendant claims numerous additional errors, but these may be explained as tacticaldecisions, are based on speculation regarding facts outside the record (see People v Wright, 1 AD3d 707,708 [2003], lv denied 1 NY3d 636 [2004]), or otherwise fail to rise to the level ofineffective assistance. Nonetheless, "the claim of ineffectiveness is ultimately concerned with thefairness of the process as a whole" (People v Benevento, 91 NY2d at 714). Consideringthe seriousness of the errors in the totality of the circumstances, we are persuaded that defendantwas " 'deprived of a fair trial by less than meaningful representation' " (People v Miller, 63 AD3d 1186,1186 [2009], quoting People v Flores, 84 NY2d 184, 187 [1994]; see US Const6th Amend; NY Const, art I, § 6; CPL 440.10 [1] [h]; People v Baldi, 54 NY2d at147; People v Chapman, 54 AD3d507, 511 [2008]; People vMiller, 11 AD3d 729, 730 [2004]).
As a new trial is required, we do not consider defendant's remaining contentions.
Peters, J.P., Spain, Lahtinen and Stein, JJ., concur. Ordered that the judgment and order arereversed, on the law, motion granted, and matter remitted to the County Court of DelawareCounty for a new trial.
Footnote 1: The victim was hosting abirthday party downstairs, and defendant was allegedly pounding meat with a mallet whilepreparing dinner.
Footnote 2: The expert conceded oncross-examination that the gun could have been fired by "fanning," or pulling back and releasingthe hammer while the trigger was depressed.
Footnote 3: Counsel did successfully objectto one question regarding magazine articles about armed citizens who used their weapons toshoot or scare people.