| People v Bryant |
| 2010 NY Slip Op 05100 [74 AD3d 1794] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin Bryant,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), renderedOctober 29, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the first degree (Penal Law § 125.27 [1] [a] [vi]; [b]). The indictment, asamplified by the bill of particulars, alleged that defendant acted as an accessory to the act ofkilling, procured the commission of the killing by making an agreement with one or more peopleto kill the victim for a sum of money, and paid such money upon performance of the agreement.Defendant contends that County Court erred in allowing the jury to consider a theory ofprosecution that was not included in the indictment, as amplified by the bill of particulars, i.e.,that he committed the killing pursuant to an agreement, when in fact it was alleged only that heprocured the commission of the killing pursuant to an agreement. Defendant is correct that thecourt erred in charging the jury that the People had to prove beyond a reasonable doubt that "thedefendant committed the killing or procured [the] commission of the killing pursuant to anagreement" in accordance with the precise language of the statute and instead should havecharged the jury only that defendant "procured [the] commission of the killing" (§ 125.27[1] [a] [vi]). Nevertheless, we conclude that reversal is not required based on the court's errorbecause the People's theory throughout the case was that defendant procured the commission ofthe killing by making an agreement with one or more persons to kill the victim for a sum ofmoney (see People v Grega, 72 NY2d 489, 495-497 [1988]). Thus, "[d]efendant was infact tried and convicted of only [that] crime[ ] and theor[y] charged in the indictment[, asamplified by the bill of particulars]" (id. at 497).
Defendant further contends that the People presented evidence based on the theory thatdefendant was an accomplice in the commission of the killing and that the court erred insubmitting that uncharged theory to the jury. We reject that contention. Defendant fails torecognize that the element of the crime of murder in the first degree that "he [or she] causes thedeath of such person" is separate [*2]and distinct from theelement of the crime that he or she "committed the killing or procured [the] commission of thekilling pursuant to an agreement" (Penal Law § 125.27 [1] [a] [vi]). Here, the Peoplecharged defendant as an accomplice under the former element and presented evidence based onthat theory, and the court properly charged the jury based on that element. The People did notcharge defendant as an accomplice with respect to the separate element of committing thekilling, nor did the court so charge the jury.
Finally, we reject the contention of defendant that the court erred in admitting evidence ofhis prior bad acts, including his attempt to hire someone other than the individuals named in thebill of particulars to kill the victim. That evidence was relevant to establish defendant's motiveand intent (see People v Kelly, 71AD3d 1520 [2010]; People v Harvey, 270 AD2d 959, 960 [2000], lv denied95 NY2d 835 [2000], lv dismissed 95 NY2d 853 [2000]), and the court, following aVentimiglia hearing, properly balanced the probative value of the evidence against itspotential for prejudice (see People vNorman, 40 AD3d 1128, 1129 [2007], lv denied 9 NY3d 924 [2007]; seegenerally People v Alvino, 71 NY2d 233, 242 [1987]). Present—Martoche, J.P.,Smith, Centra, Sconiers and Pine, JJ.