| People v Castro |
| 2010 NY Slip Op 06352 [76 AD3d 421] |
| August 10, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rafael Castro, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered May 17, 2006,convicting defendant, after a jury trial, of murder in the second degree, attempted murder in thesecond degree, and two counts of endangering the welfare of a child, and sentencing him to anaggregate term of 50 years to life, unanimously affirmed.
Defendant was convicted of the murder of his fiancÉe, Vanessa Reynosa, and theattempted murder of her mother, Miriam Rivas. He attacked both victims with a machete.According to the uncontradicted trial testimony of a medical examiner, defendant inflicted sixsharp-force wounds to Reynosa's head, neck and shoulders, and perforated her spine, anddelivered a single blow to Rivas that penetrated her brain.
The evidence of defendant's murderous attacks is overwhelming. Among other things, afterfleeing to the Dominican Republic and then surrendering to Dominican authorities, defendantconfessed orally to New York detectives in the presence of the Dominican counsel obtained byhis father after waiving his Miranda rights. He also signed a written statement, whichwas essentially consistent with his testimony at trial.
On appeal, defendant argues that he was denied his due process right to a fair trial when thetrial court refused his counsel's request to submit to the jury the charge of second-degreemanslaughter as a lesser included offense of second-degree murder. Defendant also argues thathe was denied his constitutional right to effective assistance of counsel when his attorney failedto request a charge of extreme emotional disturbance as an affirmative defense, which defendantcontends could have reduced his culpability for murder and attempted murder to culpability formanslaughter offenses (see Penal Law § 125.25 [1] [a]; § 125.20 [2];People v White, 125 AD2d 932, 933 [1986], lv denied 69 NY2d 956 [1987]).
We summarize the trial testimony that is relevant to the issues on appeal. On behalf of thePeople, Rivas testified that Reynosa met defendant in the Dominican Republic as a teenager andbore him two daughters, Brenda and Caroline. After immigrating to the United States in April2004, defendant moved into Rivas's one-bedroom apartment in the Bronx, where Reynosa, age21, Caroline, age seven, and Brenda, age two, were already living. To Rivas's knowledge, herdaughter had no other boyfriends.
On May 12, 2004, defendant and Reynosa obtained a marriage license. On May 13, [*2]Rivas testified, Reynosa left the apartment at 8 a.m. to shop for awedding dress, and Caroline left for school. At 10 a.m., Rivas left to visit her sister, leavingdefendant alone in the apartment with Brenda. At about noon, Rivas returned to the apartment,where she saw defendant, who appeared tense and nervous, pacing in the living room, and amachete, which she had never seen before, lying under her sofa. Rivas found Reynosa dead onthe floor of the bedroom, her head covered with blood. Brenda was also in the bedroom, coveredwith blood and crying for her mother.
Rivas testified that she lifted Brenda up and, hoping for an opportunity to call the police,pleaded with defendant to go pick up Caroline from school, but defendant remained in theapartment, talking to himself. When Caroline came home around 4:30 p.m., defendant gave hermoney and sent her to a store, then entered the bedroom. Rivas held Brenda in her arms andpleaded, "Kill me, don't kill the girl." At that point, Rivas testified, defendant struck her on thehead with the machete, and she lost consciousness.
On his own behalf, defendant testified that on May 13 he left the apartment around 11:30a.m., returned to it about 90 minutes later, passed through the living room where Brenda waswatching television, and opened the bedroom door to find Reynosa naked in bed with a nakedman on top of her. According to defendant, he then "lost control" and "lost his mind." The manfled from the bedroom. Defendant took a machete that was under the bed, grabbed Reynosa, andhit her with it. Then Rivas suddenly entered the apartment[FN1]and jumped on defendant, he testified, and he used the machete on Rivas while "crazy," "bad,"and "out of control." Defendant testified that he had not intended to kill or seriously injureReynosa or Rivas.
Defendant put Reynosa's body in the bathtub and put Rivas on a bed in the bedroom, whereshe apparently remained until the police found her two days later, miraculously breathing butunable to speak. The next morning, after leaving the children with relatives, defendant tookmoney from Rivas's purse and fled to the Dominican Republic, where he hid for several daysbefore surrendering to the authorities. While in the presence of his counsel in the DominicanRepublic, defendant waived his Miranda rights and gave a statement that essentiallyconformed to his trial testimony. On June 2, 2004, defendant was extradited to New York andarrested.
At the charge conference, the court denied the request by defendant's counsel that it submitthe second-degree reckless manslaughter of Reynosa as a lesser included offense ofsecond-degree murder, on the ground that defendant's conduct was "either intentional or not but[it's] certainly not reckless." Thereafter, counsel and the court discussed a possible extremeemotional disturbance charge, but defense counsel declined to request it.
On summation, defendant's counsel argued, as he had in his opening, that defendant hadlacked the intent to harm Reynosa and Rivas. The prosecution contended both that defendant hadintended to kill and that he had fabricated the story that he discovered Reynosa in bed withanother man. In particular, the prosecution questioned whether Reynosa, knowing that defendanthad keys to the apartment and could return at any time, would have sex with another man whileher daughter was in the next room, and how that man could have escaped from the apartmentwhen defendant arrived.[*3]
Challenging the trial court's refusal to submit a recklessmanslaughter instruction, defendant argues that, based on his testimony that he lost his mindwhen he found Reynosa having sex, the jury could have reasonably concluded that he had swungthe machete at her without intending to kill her, but while nonetheless aware of and consciouslydisregarding a substantial and unjustifiable risk that he would kill her.
The claim lacks merit.[FN2]A person is guilty of second-degree murder when, with intent to cause the death of anotherperson, he or she causes the death of that person (Penal Law § 125.25 [1]), and a person isguilty of second-degree manslaughter when he or she "recklessly causes the death of anotherperson" (Penal Law § 125.15 [1]). For purposes of the murder statute, a person acts"intentionally" when his or her conscious objective is to cause death (Penal Law § 15.05[1]), and, for purposes of the manslaughter statute, a person acts "recklessly" when he or she "isaware of and consciously disregards a substantial and unjustifiable risk that [death] will occur"(Penal Law § 15.05 [3]).
A defendant is entitled to have the jury consider a lesser included offense of a charged countby showing first that the offense is a "lesser included offense" of the charged crime as defined inCPL 1.20 (37),[FN3]and second that a reasonable view of the evidence supports a finding that the defendantcommitted the lesser crime but not the greater (CPL 300.50 [1]; People v Glover, 57NY2d 61, 63-64 [1982]).
No reasonable view of the evidence supports a finding that defendant committedsecond-degree manslaughter but did not commit second-degree murder (cf. People v Fernandez, 64 AD3d307 [2009]). As noted in the medical examiner's uncontradicted testimony, defendantslashed Reynosa multiple times about the head, neck, and shoulders with a machete. Thus, hecould not have acted merely recklessly (see e.g. People v Vega, 68 AD3d 665 [2009], lv denied 14NY3d 806 [2010]; People vDickerson, 67 AD3d 700 [2009], lv denied 14 NY3d 799 [2010]; People vDe Jesus, 244 AD2d 244 [1997], lv denied 91 NY2d 925 [1998]).
The cases that defendant relies on are inapposite. For example, in People v Navarette(131 AD2d 326 [1987], lv denied 70 NY2d 705 [1987]), where the defendant stabbed hiswife to death after he had allegedly found her in bed with another man, this Court held that thetrial court improperly declined to submit second-degree manslaughter as a lesser includedoffense of second-degree murder. But in Navarette, an argument between defendant andhis wife escalated into a struggle resulting in her death.
Defendant's second claim on appeal is that he was denied effective assistance of counselwhen his attorney declined the suggestion of a jury instruction on extreme emotional disturbanceas an affirmative defense and instead relied exclusively on the theory that defendant lacked the[*4]intent to murder. According to defendant, counsel did notforgo an extreme emotional disturbance defense for any strategic reason, but because hemisunderstood the law and the facts. Defendant argues that counsel did not request the chargebecause he wrongfully believed that the evidence failed to establish all of the elements of thedefense.
The test for effectiveness in a case is whether counsel provided meaningful representationunder the circumstances of that case, viewed in their totality (see People v Henry, 95NY2d 563, 565 [2000]). While a defendant need not show actual prejudice to make out anineffective assistance of counsel claim, he or she must show that "the attorney's conductconstituted ' "egregious and prejudicial" ' error such that defendant did not receive a fair trial"(People v Benevento, 91 NY2d 708, 713 [1998], quoting People v Flores, 84NY2d 184, 188 [1994]).
Courts will not readily second-guess trial strategy (see People v Pacheco, 135 AD2d744, 745 [1987], lv denied 71 NY2d 900 [1988]). If the defense reflects a reasonablestrategy in light of the circumstances of the case and the evidence presented, it will not beconsidered ineffective assistance even if it proves unsuccessful (People v Rote, 28 AD3d 868, 870[2006]). It is the defendant's burden on appeal to show that counsel's alleged shortcomings lack alegitimate explanation (People vJohnson, 37 AD3d 363 [2007], after remand 46 AD3d 276 [2007], lvdenied 10 NY3d 865 [2008]).
A review of defense counsel's conduct during the trial, from opening through summation,reveals his consistent strategy of arguing to the jury that defendant lacked criminal intent. Afterthe People withdrew the count of depraved indifference murder and the court rejected defensecounsel's request for a charge of reckless manslaughter, defendant was left with the choice ofeither accepting the course that the court seemed to urge (arguing the affirmative defense ofextreme emotional disturbance) or adhering to the strategic course that he had pursued since hisopening: arguing to the jury that the defendant lacked the culpable state of mind to haveintentionally killed his fiancÉe and gravely injure her mother, and that therefore he shouldbe acquitted of murder and attempted murder, the most serious crimes.
Regardless of whether defense counsel was correct in stating that his client's testimonyundermined one of the elements of the affirmative defense, counsel's decision to argue thatdefendant lacked criminal intent was hardly devoid of legal insight or strategic sense. First,defendant would have had the burden of proving the affirmative defense of extreme emotionaldisturbance. Second, it is only a partial defense that would still have exposed defendant to asentence of up to 25 years on the "reduced" manslaughter count and up to 15 years on the"reduced" attempted manslaughter count, especially given the viciousness of the acts. Counselwould have argued extreme emotional disturbance on essentially the same facts as those onwhich he argued lack of culpable intent. Finally, submitting the defense to the jury would haveallowed it to reach a compromise verdict, thereby reducing defendant's chances of a completeacquittal (see People v Lopez, 36AD3d 431, 432 [2007], lv denied 8 NY3d 947 [2007]). By arguing lack of intent,counsel adopted an "all-or-nothing" defense that was reasonable under the circumstances (see People v Clarke, 55 AD3d 370[2008], lv denied 11 NY3d 923 [2009]; see also People v Syphrett, 57 AD3d 286, 286-287 [2008], lvdenied 12 NY3d 788 [2009]; Lopez, 36 AD3d at 432). Thus, on this record, we seeno error in counsel's performance that warrants reversal (see People v Alford, 33 AD3d 1014 [2006]).Concur—Andrias, J.P., Saxe, Sweeny, Freedman and RomÁn, JJ.
Footnote 1: Rivas's testimony offered aconflicting chronology. She stated that defendant attacked her about five hours after she hadreturned to the apartment on May 13 and discovered her daughter's body.
Footnote 2: Defendant's argument based onconstitutional grounds is unpreserved because defendant did not assert it to the trial court(see e.g. People v Kello, 96 NY2d 740, 743-744 [2001]), and we decline to review it inthe interest of justice. As an alternative holding, we reject it on the merits.
Footnote 3: Under the statute, an offense isa "lesser included offense" of a greater offense only when "it is theoretically impossible tocommit the greater crime without at the same time committing the lesser" (People vGlover, 57 NY2d 61, 64 [1982]).