| People v Heesh |
| 2012 NY Slip Op 02529 [94 AD3d 1159] |
| April 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Russell L.Heesh, Appellant. |
—[*1] Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Delaware County (Becker, J.),rendered June 14, 2010, upon a verdict convicting defendant of the crime of recklessendangerment in the first degree (two counts).
In March 2009, defendant's girlfriend moved from his home, where she had resided forapproximately four months, to return to the home she owned with another man, with whom shehad previously been romantically involved (hereinafter the paramour). On the night after hermove, multiple gunshots were fired through a window of their home into a bedroom where thegirlfriend and the paramour were sleeping. Defendant was subsequently charged with two countsof reckless endangerment in the first degree and five counts of criminal possession of a weaponin the fourth degree.
Following a jury trial in January 2010, defendant was convicted upon the five criminalpossession charges, but the jury was unable to reach a verdict as to the two recklessendangerment charges. County Court sentenced defendant to concurrent one-year prison termsupon the convictions, and declared a mistrial as to the remaining charges. In May 2010, a secondjury convicted defendant upon the reckless endangerment counts. He was sentenced in June 2010to two prison terms of 2 to 6 years, to run concurrently to each other and consecutively to theprior sentence. Defendant appeals.[*2]
Initially, defendant's challenges relative to the January2010 criminal possession convictions may not be addressed. The notice of appeal was directedsolely to the May 2010 convictions and subsequent sentences; defendant neither appealed fromthe earlier judgment nor moved for an extension of time to take such an appeal (see CPL460.10 [1] [a]; 460.30 [1]; People vDabo, 82 AD3d 485 [2011], lv denied 16 NY3d 858 [2011]; People vMoore, 194 AD2d 32, 34 [1993], lv denied 83 NY2d 856 [1994]).
As to the May 2010 convictions, defendant contends that his statements to police werecoerced and should have been suppressed. Whether a statement is voluntary is a factual questionto be determined from the totality of the circumstances (see People v Pouliot, 64 AD3d 1043, 1044 [2009], lvdenied 13 NY3d 838 [2009]; Peoplev Button, 56 AD3d 1043, 1044 [2008], lv dismissed 12 NY3d 781 [2009]; People v Bridges, 16 AD3d 911,912 [2005], lv denied 4 NY3d 884 [2005]). At the Huntley hearing, a policeinvestigator testified that she gave Miranda warnings to defendant immediately after hewas taken into custody, and defendant confirmed that he understood the warnings and consentedto speak with police. She testified that, during subsequent questioning, defendant never asked tospeak with an attorney nor invoked his right to remain silent, he was offered food and drink, andhe was permitted to spend time with family members and, upon his request, to speak with asenior investigator. Defendant initially denied any involvement in the shooting but eventuallymade several incriminating admissions. Both investigators who spoke with defendant testifiedthat, although they could smell alcohol on his person, he did not appear to be intoxicated and wasable to respond to questions without difficulty. Defendant acknowledged that he was givenMiranda warnings, but alleged that he could not hear them because another officer wasspeaking at the same time. He testified that he never waived his Miranda rights, that herequested counsel at least twice, that an officer "kind of yell[ed] at [him]" during the interview,and that he was "[v]ery intimidated." Notably, despite his claim that he could not hear theinvestigator's warnings, defendant acknowledged that he was aware of his Miranda rightsfrom numerous previous arrests (compare People v McLean, 59 AD3d 861, 863 [2009], affd15 NY3d 117 [2010]). Resolution of the conflicting testimony required credibility determinationsby County Court, to which this Court defers; upon review we find no reason to disturb thedetermination (see People v Byron,85 AD3d 1323, 1324 [2011], lv denied 17 NY3d 857 [2011]; People v Kuklinski, 24 AD3d1036, 1036-1037 [2005], lv denied 7 NY3d 758 [2006]).[FN1]
We find that defendant's reckless endangerment convictions were supported by legallysufficient evidence. A person is guilty of reckless endangerment in the first degree when, "undercircumstances evincing a depraved indifference to human life, he [or she] recklessly engages inconduct which creates a grave risk of death to another person" (Penal Law § 120.25). Thegirlfriend testified that she and defendant were involved in a confrontation on the day before theincident. A State Trooper testified that during a telephone call that evening, defendant told himthat "he was going [to] do something stupid and end up in jail the next morning." Another StateTrooper testified that on the same evening, defendant stated that "[the police] might as well comeand arrest him now, he was going to do something stupid." Recordings of these calls were playedfor the jury. The paramour testified that during the two days before the incident, [*3]defendant threatened him during a telephone call and twice droveinto the paramour's driveway—once in a gold Honda Accord—and then rapidlydrove away again. On the night of the incident, immediately after the shots were fired, theparamour saw a gold Honda Accord exiting the driveway, and he identified a photograph of a carat defendant's home as the same vehicle.[FN2]
Police investigators testified that they found projectile holes in the victims' window, bulletsin their bedroom ceiling, and spent .22 casings in their driveway. Spent .22 casings were alsofound in the backseat of defendant's Honda Accord, a box of the same kind of ammunition wasfound in his gun cabinet, and a .22 caliber semi-automatic rifle was found partially hidden underhis couch. A firearms expert testified that test casings fired from this rifle "agreed" with thecasings found by police, although no definitive identification could be made. Police investigatorstestified that defendant told them, among other things, that he had awoken on the morning afterthe incident with the empty rifle beside him, though he normally kept it loaded, that "he knew hehad done it," and that he vaguely remembered being at the bottom of the victims' driveway,getting out of his car and shooting rapidly "up in the air like . . . warning shots."Despite exculpatory testimony offered by defendant, the girlfriend and his daughter, we have nodifficulty in concluding that, viewed in the light most favorable to the People, the evidenceprovides a "valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Vargas, 60 AD3d1236, 1237-1238 [2009], lv denied 13 NY3d 750 [2009]; People v Tillman, 57 AD3d 1021,1024 [2008]; People v Yellen, 30AD3d 634, 635-636 [2006], lv denied 8 NY3d 951 [2007]).
Defendant next asserts that he was deprived of a fair trial when the prosecutor played audiorecordings of cell phone messages from defendant to the girlfriend during summation and thenexplained the content of the messages, which were difficult to hear. The recordings hadpreviously been admitted into evidence without objection, but had not been played for the jury.Defendant contends that the prosecutor improperly made himself an unsworn witness by offeringhis personal interpretation (see generallyPeople v Moye, 12 NY3d 743, 744 [2009]; People v Colon, 307 AD2d 378, 381[2003], lv denied 100 NY2d 619 [2003]). This issue was not preserved by the generalobjection of defense counsel before the messages were played; though defendant now contendsthat a hearing, curative instruction or mistrial was required, there was no such request made, norwas there any specific objection to the prosecutor's interpretation (see People v Tonge, 93NY2d 838, 839 [1999]; People vDelosh, 2 AD3d 1047, 1049-1050 [2003], lv denied 1 NY3d 626 [2004]). In anyevent, the record reveals that the prosecutor's translation was reasonably accurate and the contentwas not inflammatory. Further, the jury was expressly instructed before summation that theremarks of counsel did not constitute evidence, and we may presume that this instruction wasfollowed (see People v Baker, 14NY3d 266, 273-274 [2010]; People v Foss, 267 AD2d 505, 510 [1999], lvdenied 94 NY2d 947 [2000]). Therefore, were we to consider the alleged error, we wouldfind it harmless, and no modification is required in the interest of justice (see People vMorgan, 66 NY2d 255, 259 [1985]; People v McAllister, 264 AD2d 742, 743[1999], lv denied 94 NY2d 882 [2000]; compare People v Francis, 58 AD3d1015, 1015-1016 [2009]).[*4]
Finally, we reject defendant's contention that his sentenceis harsh and excessive. As County Court noted, defendant fired seven shots at night into a homethat was occupied by the victims and several other people, including a two-year-old child. Inview of the premeditated nature of this violent act, defendant's extensive criminal history, and hisfailure to accept responsibility for his actions, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of his sentence (see People v Mann, 63 AD3d 1372, 1374 [2009], lv denied13 NY3d 861 [2009]; People vLozada, 35 AD3d 969, 971 [2006], lv denied 8 NY3d 947 [2007]).
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant also challengesCounty Court's Sandoval rulings, but the issues he raises relate exclusively to the firsttrial; no evidence of prior convictions was introduced during the second trial. Accordingly, thesecontentions are not addressed.
Footnote 2: The girlfriend, who had resumedher romantic relationship with defendant by the time of trial, also identified this vehicle asbelonging to defendant or his daughter, but claimed that it was inoperable at the time of theincident.