| People v Smith |
| 2011 NY Slip Op 07745 [89 AD3d 1126] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bruce Smith,Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Columbia County (Nichols, J.), renderedMarch 31, 2009, upon a verdict convicting defendant of the crimes of gang assault in the seconddegree and assault in the second degree.
On February 16, 2008, police responded to the apartment of Kari Cordato on State Street in theCity of Hudson, Columbia County around 1:30 a.m. where they found Floyd Sanders, the victim, on arear porch adjacent to the kitchen, unconscious and bleeding. Also present were Cordato and herhousemate, Kevin Allen, defendant and his wife and several others, all friends; Cordato's five youngchildren were asleep upstairs. The evidence established that sometime before midnight, defendant hadconfronted Sanders at Sanders' apartment about a handwritten list in which Sanders had reportedlyexplicitly documented his sexual abuse of many children, naming Cordato's eight-year-old daughter anddefendant's 13-year-old stepdaughter. Defendant punched Sanders in the face several times, and thendefendant escorted Sanders down the street to Cordato's apartment, followed minutes later bydefendant's wife; Cordato and Allen were shown the list, Cordato recognized the handwriting as that ofSanders and defendant's daughter was summoned from her sleep and questioned about the abuse.Sanders was then severely beaten and died a week later due to blunt force trauma to the head.[*2]
Defendant, Cordato and Allen were jointly indicted formanslaughter in the first degree and gang assault in the first degree. Allen was granted a severance andtried separately. After a joint jury trial, defendant was convicted of the lesser included offenses ofassault in the second degree and gang assault in the second degree, and now appeals. This Courtaffirmed Cordato's convictions for gang assault in the first degree and assault in the second degree (People v Cordato, 85 AD3d 1304[2011], lv denied 17 NY3d 815 [2011]).
Initially, defendant challenges County Court's ruling, after a Huntley hearing, denying hismotion to suppress statements he made to police on February 16, 2008. We perceive no grounds fordisturbing the court's determination, which has a sound basis in the record. Defendant's initialincriminating statements to police—who had just responded to the potential crime scene in acrowded apartment and were investigating what had transpired—were admissible asnoncustodial responses to brief, investigatory questions aimed at clarifying the situation (see People v Steinhilber, 48 AD3d958, 959 [2008], lv denied 10 NY3d 871 [2008]; see also People v Cordato, 85AD3d at 1309). The Huntley testimony established that defendant approached OfficerNicholas Pierro and asked to speak with him; the officer asked, "what's up[?]" and, in response,defendant said, referring to Sanders, "this guy is raping my daughter and [Cordato's] daughter." Theofficer replied that they could "handle that later" but "need[ed] to know what happened to the guy onthe back porch." Defendant stated, "I did it. I beat his ass," and the officer asked, "you're the one thatbeat him up[?]" and defendant replied, "yes, that a**hole is raping little kids." These statements, madearound 1:35 a.m., were voluntary and noncustodial and no Miranda warnings were required.
Defendant was arrested shortly thereafter and taken to the police department where Pierroprovided Miranda warnings around 1:59 a.m., which defendant indicated he understood,agreeing to speak with him. Pierro advised Detective James Delaney of the foregoing and, around 3:03a.m., Delaney approached defendant, handcuffed in a holding cell, and said, "we need to talk aboutwhat happened to these kids"; defendant replied, "you don't understand, that's my 13-year-olddaughter. I have to protect my family." Around 3:30 a.m., defendant blurted out to Delaney from theholding cell remarks indicating his sense of unfairness that he should be going to jail for protecting hisfamily. When Delaney asked defendant for his pants, shoes and socks for analysis, defendantremarked, "I could have saved you some trouble and bodied him right there. He's lucky I didn't."Defendant remained in continuous custody and was not subject to coercive tactics in the short delayafter he was advised of and waived his rights. Delaney was not required to advise him of hisMiranda rights a second time, given Pierro's recent advisement and defendant's voluntarywaiver thereof (see People v Carelli, 41AD3d 1092, 1093 [2007]). Further, the 3:30 a.m. statements were not the product of policequestioning but, rather, were spontaneously uttered and, as such, admissible (see People v Smith, 21 AD3d 587,588 [2005], lv denied 5 NY3d 833 [2005]). While the officers detected the odor of alcohol ondefendant's breath, their testimony undermined any claim that defendant was so intoxicated as to havebeen incapable of understanding or voluntarily waiving his rights (see People v Meissler, 305AD2d 724, 726 [2003], lv denied 100 NY2d 644 [2003]).
At around 10:00 a.m., Detective John Funk provided defendant with Miranda warnings asecond time, which defendant again waived, indicating that he wanted to be "straight" with police.Defendant then provided a narrative statement, recorded by Delaney, of the events of the prior night,admitting that he had hit Sanders at Sanders' apartment after seeing the list; defendant stated that afterhe escorted Sanders to Cordato's apartment and showed everyone the list, "I kept going at him andwanted him to tell me the truth. [Sanders] kept lying to me. I lost my temper. [*3]It stopped when [another friend present] broke it up and the police gotthere." Defendant also admitted, "I didn't want it to go this far. I just wanted him to learn a lesson."Despite defendant's contention that his written statement was involuntarily obtained, the testimony fullysupports County Court's conclusion that he was re-Mirandized and voluntarily, knowingly andintelligently waived his rights and provided, and signed around 11:20 a.m., the written account of theassault (see People v Judware, 75 AD3d841, 843-844 [2010], lv denied 15 NY3d 853 [2010]). There was no evidence thatdefendant was threatened or coerced, asked for an attorney or objected to the questioning, or that thelength or circumstances of the questioning rendered his responses involuntary (id. at 844).Thus, defendant's statements properly were ruled to be admissible in their entirety.[FN*]
Next, we reject defendant's challenges to the legal sufficiency and weight of the evidence. Assaultin the second degree required that defendant, "[w]ith intent to cause serious physical injury to anotherperson, [caused] such injury to such person or to a third person" (Penal Law § 120.05 [1]). Thejury was charged that defendant could be found criminally liable for the assault as an accomplice, i.e., ifhe acted with the mental culpability required for the assault and "solicit[ed], request[ed], command[ed],importune[d], or intentionally aid[ed] [another] person to engage in such conduct" and such otherperson "engage[d] in conduct which constitute[d] [that] offense" (Penal Law § 20.00). Gangassault in the second degree required that defendant, acting with the intent to cause physical injury toanother person, "cause[d] serious physical injury to such person or to a third person" while "aided bytwo or more persons actually present" (Penal Law § 120.06).
The People pursued the theory at trial that the assault on Sanders was an ongoing incident thatstarted at Sanders' apartment and continued at Cordato's apartment. Indeed, the indictment, and laterthe jury instruction containing the lesser included offenses of which defendant was convicted, chargedthat all of the offenses occurred "on or about the 16th of February, 2008, in the City of Hudson," andthe charges were never limited to one apartment or the other.
Turning to the offenses, there was certainly a "valid line of reasoning and permissible inferenceswhich could lead a rational person to the conclusion reached by the jury on the basis of the evidence attrial and as a matter of law satisfy the proof and burden requirements for every element of the crime[s]"of conviction (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]). There was nodispute that defendant assaulted Sanders at Sanders' apartment, punching him in the face several times,and then escorted him to Cordato's apartment to expose the list and confront him in the presence oftheir friends, believing Cordato's young child was named on the list. It was also established thatdefendant was present in Cordato's apartment when Sanders was beaten by more than one amongthem. While defendant's wife denied seeing [*4]him ever actually strikeSanders at Cordato's place, her testimony—like Cordato's—placed defendant standing inthe kitchen with Allen and others at a critical time, i.e., when Sanders was confronted with the list andafter Cordato's daughter was summoned and questioned, when Allen and then Cordato hit Sanders.Defendant's wife testified that she left the kitchen to go upstairs and speak with the child and, when shereturned to the kitchen, Sanders was on the floor in a pool of blood with Allen. While she testified thatdefendant was taken into the living room by another friend, her testimony cannot be read to excludedefendant's presence in the kitchen during the beating of Sanders. Cordato gave a similar account, buttestified that, after her daughter was questioned, she left the kitchen to vomit and, upon her return,Sanders was on the bloody floor and surrounded by defendant, Allen and two other friends. Notably,the jury did not need to unanimously agree on whether defendant participated as a principal or as anaccomplice (see People v Mateo, 2 NY3d 383, 406 [2004], cert denied 542 US 946[2004]). The foregoing, combined with defendant's many admissions to police, viewed most favorablyto the People, proved beyond a reasonable doubt that defendant, acting with the requisite intent tocause serious physical injury, actually perpetrated an assault on Sanders at both apartments or wascriminally liable for the assault at Cordato's apartment as an accessory having importuned orintentionally aided in the assaults.
Similarly, with regard to the gang assault in the second degree conviction, viewing the evidence in alight most favorable to the People, including defendant's statements to police, the jurors rationallyconcluded that defendant acted with the mental culpability required—intent to cause physicalinjury—causing serious physical injury to Sanders "when aided by two or more other personsactually present" (Penal Law § 120.06; see People v Sanchez, 13 NY3d 554, 563-567 [2009]; People vCordato, 85 AD3d at 1310). There was proof that Cordato, Allen and at least two other friendswere actually present and "in the immediate vicinity of the crime and . . . capable ofrendering immediate assistance" (People vRivera, 71 AD3d 701, 702 [2010]; see People v Marquez, 298 AD2d 407,407-408 [2002], lv denied 99 NY2d 560 [2002]), and the testimony established that othersactually aided the assault. There is no dispute that Sanders, who died a week later from his headinjuries, suffered "serious physical injury" (Penal Law § 10.00 [10]), and defendant's intent andmotives were overwhelmingly established by his conduct and admissions to police. The evidence thatdefendant was one of the group who assaulted Sanders included his own admissions, the testimonyestablishing his presence in the kitchen for at least some of the time interval in which the assaultoccurred, and the evidence establishing that Sanders' blood was on defendant's hand and shoes.
Further, viewing the evidence in a neutral light, while a different verdict would arguably not havebeen unreasonable, we do not find that the jury's verdict is contrary to the weight of credible evidence(see People v Bleakley, 69 NY2d at 495). While defendant's wife and Cordato, his goodfriend, had obvious motives not to implicate him directly in the fatal beating, the testimony and proofwere uncontroverted that defendant actually assaulted Sanders at Sanders' apartment and then initiatedthe group confrontation at Cordato's apartment. Defendant's own statements to police persuasivelyestablished that he actively participated in the beating at Cordato's apartment that led to Sanders' death,and the requirement that he was aided by two or more others—actively or capable ofassisting—was convincingly proved. Thus, the verdict will stand.
Defendant continues to claim that he was entitled to a separate trial from that of Cordato, a pointunsuccessfully made prior to trial and repeatedly raised and reconsidered at trial. We find the argumentto be meritless for the reasons stated in Cordato's appeal (People v [*5]Cordato, 85 AD3d at 1308-1309). At trial, defendant, like Cordato,denied participating in or observing the assault on Sanders at Cordato's apartment, both sought torepudiate their admissions to police, and defendant denied causing serious physical injury to Sanders atSanders' apartment; Cordato's written statement to police was redacted to remove any reference todefendant (id. at 1308, 1308 n 2). Their defenses were not in "irreconcilable conflict"(People v Mahboubian, 74 NY2d 174, 184 [1989]), and no abuse of discretion occurred bythe denial of defendant's severance motions.
To the extent that defendant asserts that County Court erred in denying his motion to set aside theverdict as repugnant (see CPL 330.30 [1]), we disagree. Defendant's motion, not made untilafter the discharge of the jury, was untimely and, as such, "the issue was not preserved for appellatereview as a question of law, a condition precedent to the grant of a motion made pursuant to CPL330.30 (1)" (People v Guerrero, 111 AD2d 350, 355 [1985, Titone, J., dissenting], revdon dissenting mem below 69 NY2d 628 [1986]; see People v Carter, 63 NY2d 530, 536[1984]). Given that the motion was made after the discharge of the jury, when "it was no longerpossible to remedy the defect, if any, by resubmission to the jury for reconsideration of its verdicts"(People v Satloff, 56 NY2d 745, 746 [1982]), the court correctly denied this relief (seePeople v Alfaro, 66 NY2d 985, 987 [1985]; People v Jones, 79 AD3d 1244, 1245 n [2010], lv denied 16NY3d 832 [2011]). We decline to take corrective action in the interest of justice (see People v Johnson, 40 AD3d 1270,1273 [2007], lv denied 9 NY3d 877 [2007]).
Finally, we are not persuaded to exercise our interest of justice jurisdiction to reduce defendant'ssentence (see CPL 470.15 [6] [b]). While defendant received the maximum aggregatesentence of 15 years in prison, as a second felony offender, the evidence demonstrated that he, incontrast to Cordato, initiated the highly-charged and ultimately fatal group confrontation of Sanders.While defendant's predicate felony was a relatively low level drug possession in 2004, his only knowncrime, he was on parole at the time of this violent incident and we do not find that the sentence was "aclear abuse of discretion or the existence of extraordinary circumstances" warranting a discretionaryreduction (People v Elliot, 57 AD3d1095, 1097 [2008], lv denied 12 NY3d 783 [2009] [internal quotation marks omitted]).
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Likewise, we discern no basis fordisturbing County Court's determinations to credit the officers' testimony why defendant was not askedto sign a Miranda waiver card, that the CPL 710.30 notice for defendant's 3:30 a.m. oralstatements inadvertently indicated that they were made in response to police questioning rather thancorrectly noted as spontaneous, and that defendant's interrogations were not videotaped because theequipment malfunctioned.