| People v Rabideau |
| 2011 NY Slip Op 01539 [82 AD3d 1283] |
| March 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BrendaRabideau, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchely of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered July 6,2009 in Clinton County, upon a verdict convicting defendant of the crimes of attempted murderin the second degree, attempted assault in the first degree, assault in the second degree andcriminal use of a firearm in the first degree.
One morning in April 2008, Ricky Rabideau arrived at his residence in the Town of Mooers,Clinton County and encountered defendant, his estranged wife, in a vehicle. After a short verbalaltercation, Rabideau was shot one time in the back, but escaped the scene in a passing truck.After a short standoff with police, during which a small fire was set inside the residence,defendant surrendered. Defendant was thereafter indicted for attempted murder in the seconddegree (count one), attempted assault in the first degree (count two), assault in the second degree(count three), criminal use of a firearm in the first degree (count four), and recklessendangerment in the first degree (count five). Defendant's subsequent motion to suppress threestatements made to the police was denied by Supreme Court after a Huntley hearing.After a jury trial, defendant was found guilty of all charges except reckless endangerment in thefirst degree. She was later sentenced to an aggregate prison term of 12 years, with three years ofpostrelease supervision. Defendant now appeals.[*2]
Initially, we are not persuaded that Supreme Court erredin denying defendant's motion to suppress three statements. "[S]pontaneous statements madewhile in custody which are not the product of questioning or its functional equivalent clearly areadmissible regardless of whether Miranda warnings were given" (People v Starks, 37 AD3d 863,864 [2007] [internal quotation marks and citation omitted]; see People v Scott, 47 AD3d 1016, 1019-1020 [2008], lvdenied 10 NY3d 870 [2008]). Testimony at the Huntley hearing revealed that, at theconclusion of the standoff and while defendant was in custody in the yard outside of theresidence, a State Police sergeant observed smoke emanating from the residence and instructedanother officer to "get some people and go in and make sure the fire was out," at which pointdefendant stated, "it's just a bag of potato chips and he deserved it anyway." Shortly thereafter,while en route to the hospital in an ambulance, defendant made a statement to an emergencymedical technician, "I don't care if I live or die." This comment was overheard by anaccompanying officer. Finally, after being evaluated at the hospital, defendant was released andtransported to Mooers Town Court for arraignment. After this court appearance, while defendantwas sitting in a police car outside the court, a civilian approached the car and gave defendantwords of encouragement, to which defendant responded, "He should have died for all he's doneto me, the bastard." While all three of these statements were made while in custody and at a timewhen defendant had not been advised of her Miranda rights, they constituted spontaneousstatements and were not the result of police interrogation (see People v Henderson, 74 AD3d 1567, 1569 [2010], mod77 AD3d 1168 [2010]; People v Starks, 37 AD3d at 864; People v Jones, 169AD2d 986, 988 [1991], lv denied 77 NY2d 996 [1991]).
We next address defendant's argument that Supreme Court erred in permitting the People, intheir case-in-chief, to introduce evidence of two prior uncharged crimes committed by defendant,specifically, two instances when, after her separation from Rabideau, defendant entered themarital residence and destroyed certain personal property belonging to him. In a prosecution forattempted murder in the second degree, a defendant may raise the affirmative defense of extremeemotional disturbance (hereinafter EED) (see Penal Law §§ 110.00, 125.25[1] [a]; People v Veras, 175 AD2d 710, 713 [1991, Smith, J., concurring in part anddissenting in part], lv denied 78 NY2d 1130 [1991]), which, if successful, serves toreduce a charge of attempted murder in the second degree to attempted manslaughter in the firstdegree (see People v Ledesma, 300 AD2d 72, 72 [2002], lv denied 100 NY2d563 [2003]; People v Motter, 235 AD2d 582, 584 [1997], lv denied 89 NY2d1038 [1997]; People v Robinson, 143 AD2d 376, 377 [1988], lv denied 73 NY2d789 [1988]). The defense must be established by a preponderance of the evidence and besupported by proof that the defendant "suffered from a mental infirmity not rising to the level ofinsanity at the time of the [incident], typically manifested by a loss of self-control" (People vRoche, 98 NY2d 70, 75 [2002]; accord People v Diaz, 15 NY3d 40, 45 [2010]; People v Smith, 1 NY3d 610, 612[2004]). Where such an affirmative defense is presented, the People have the right to presentrebuttal evidence that the defendant did not suffer from a mental infirmity on the date of theincident (see CPL 260.30 [7]; People v Harris, 98 NY2d 452, 489 [2002]; People v Schicchi, 13 AD3d 470,471 [2004], lv denied 4 NY3d 856 [2005]; People v Gabriel, 241 AD2d 835, 837[1997], lv denied 91 NY2d 892 [1998]; compare People v Santarelli, 49 NY2d241, 247 [1980]), which may consist of evidence of uncharged criminal conduct if it has atendency to disprove the defendant's claim that he or she suffered from mental infirmity such thathe or she lacked control over his or her actions (see People v Santarelli, 49 NY2d at 248).
Here, Supreme Court correctly ruled that the People could present evidence—to rebut[*3]defendant's proffered affirmative defense—that afterher separation from Rabideau, defendant entered the former marital residence on twooccasions—in December 2007 and January 2008—and destroyed personal propertybelonging to him. However, although it was improper to permit the People to offer this evidenceduring their case-in-chief, we find this error to be harmless in light of the overwhelming evidenceof defendant's guilt, together with the lack of any significant probability that the jury would haveacquitted defendant had it not been for this error (see generally People v Smith, 2 NY3d8, 12-13 [2004]; People vMaricevic, 52 AD3d 1043, 1046 [2008], lv denied 11 NY3d 790 [2008]).
Contrary to defendant's contention, we find, viewing the evidence in a light most favorable tothe People, that legally sufficient evidence exists to support the jury's verdict on counts one, twoand four (see Penal Law §§ 110.00, 125.25 [1]; § 120.10 [1]; §265.09 [1] [a]; People v Rolle, 72AD3d 1393, 1396 [2010]; People vSaxton, 75 AD3d 755, 758 [2010], lv denied 15 NY3d 924 [2010]; People v Dorsey, 3 AD3d 590, 591[2004]). The trial testimony established that, in April 2008, defendant and Rabideau were in theprocess of obtaining a divorce and were living apart, with Rabideau residing in the formermarital residence. During the morning hours of April 29, 2008, defendant went to the maritalresidence while her husband was at work to search for personal property she suspected Rabideauhad not disclosed in the divorce proceedings. Defendant entered the residence and removed aMarlin .22 magnum rifle owned by Rabideau, which she placed in the back seat of her car. Whiledefendant was still at the residence, Rabideau returned and an argument ensued. After tellingdefendant to leave the property, Rabideau went inside the residence and, through a window,observed defendant remove the rifle from her car and walk with it towards the house. As sheapproached the door, Rabideau heard defendant say "Come on. [Y]ou son of a bitch. Where areyou? You hiding?" He saw defendant trying to body slam the door, at which point he called 911.Rabideau heard two gun shots as he headed towards the back of the house and down thebasement stairs in an effort to escape through the basement door. As he exited the basement door,Rabideau heard two more gun shots. Once outside, Rabideau ran towards his truck and observeddefendant inside the home, attempting to open a window. Rabideau reached his truck andsquatted behind the driver's side door of the vehicle. Defendant fired two more shots in thedirection of the truck, with one bullet striking the fender of the truck and the other striking ahelmet stored inside a garage beyond the truck. Seeing an oil delivery truck coming down theroad, Rabideau began to run across the yard towards it, but was shot in the back and fell to theground. After getting back up, Rabideau ran to the oil truck, jumped on it and was driven off. Ashe arrived on the scene, the truck's driver, who was acquainted with defendant, observed herholding the rifle with two hands as if she were hunting something. As they drove away, Rabideauheard more gun shots.
After receiving 911 calls related to the incident, a State Police investigator telephoned theresidence and reached defendant. An approximate 30-minute taped phone conversation thenensued, during which defendant at various times stated that she shot her husband, that she "wasjust scaring him and . . . didn't even mean to hit him" and that she "wanted to hurthim" and "attempted to kill him, but . . . didn't mean to attempt to kill him."Throughout this conversation, defendant stated an intention to commit suicide, and was heardgoing through the house and destroying various items because Rabideau "got everything and[defendant] ha[d] nothing" as a result of their pending divorce. After eventually surrendering topolice, six .22 magnum shell casings were found scattered around the outside of the home and, inaddition to the bullet holes found in the truck and in the helmet, a trajectory analysis revealed thattwo bullets found lodged in the wall of the interior of the home lined up with two bullet holesfound in the home's front door and its glass panel. Finally, one bullet entered the left side ofRabideau's lower back above [*4]the hipbone and lodged in hischest, where it remains. We find that this evidence supported the jury's conclusion that defendant,armed with a rifle, pursued Rabideau and repeatedly shot at him while intending to seriouslyinjure him or cause his death and, in fact, did shoot and wound him.
Viewing the evidence in a neutral light and deferring to the jury's ability to assess thewitnesses' credibility (see People vMolina, 79 AD3d 1371, 1376 [2010]; People v Sanchez, 75 AD3d 911, 913 [2010], lv denied 15NY3d 895 [2010]; People v Dorsey, 3 AD3d at 591-592), we find that the verdict wassupported by the weight of the credible evidence and, in fact, a different finding would have beenunreasonable (see Penal Law §§ 110.00, 125.25 [1]; § 120.10 [1];§ 120.05 [2]; § 265.09 [1] [a]; People v Dorsey, 3 AD3d at 592). Further,contrary to defendant's argument, in light of the conflicting expert testimony regarding whetherdefendant suffered from extreme emotional disturbance on the day of the shooting, the jury'srejection of this affirmative defense does not render the verdict against the weight of the evidence(see People v Hendrie, 24 AD3d871, 874 [2005], lv denied 6 NY3d 776 [2006]; People v Allen, 13 AD3d 892, 894 [2004], lv denied 4NY3d 883 [2005]).
Finally, we are unpersuaded that defendant's sentence is harsh and excessive. Based on thenature of the offenses committed, including the number of times that defendant shot the rifle, allwhile Rabideau was attempting to flee, we discern no extraordinary circumstances or an abuse ofdiscretion warranting a reduction of the sentence (see CPL 470.15 [6] [b]; People v Hey, 74 AD3d 1582,1583 [2010], lv denied 15 NY3d 852 [2010]; People v Sabin, 73 AD3d 1390, 1391 [2010], lv denied 15NY3d 809 [2010]). Defendant's challenge to the jury's charge has not been preserved forappellate review, and we decline to exercise our interest of justice jurisdiction (see CPL470.15 [6] [a]; People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d908 [2000]; compare People v Greene, 306 AD2d 639, 643 [2003], lv denied 100NY2d 594 [2003]). Defendant's remaining contention that she was denied a formalVentimiglia hearing has been reviewed and is found to be without merit (see People vWemette, 285 AD2d 729, 731 [2001], lv denied 97 NY2d 689 [2001]; People vHolmes, 260 AD2d 942, 943 [1999], lv denied 93 NY2d 1020 [1999]).
Rose, Kavanagh and McCarthy, JJ., concur; Cardona, P.J., not taking part. Ordered that thejudgment is affirmed.