| People v Casado |
| 2012 NY Slip Op 06676 [99 AD3d 1208] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jose L.Casado, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered August 3, 2009. The judgment convicted defendant, upon a jury verdict, of attemptedaggravated murder of a police officer, attempted aggravated assault upon a police officer andcriminal possession of a weapon in the second degree.
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 of,inter alia, attempted aggravated murder of a police officer (Penal Law §§ 110.00,125.26 [1] [a] [i]; [b]) and attempted aggravated assault upon a police officer (§§110.00, 120.11). Defendant contends that his conviction of those two counts should be reversedand those counts should be dismissed as duplicitous because the evidence at trial establishes thatthere were two separate and distinct shooting incidents. We reject that contention. We note at theoutset that defendant is correct that the two shooting incidents constitute distinct criminal acts asopposed to a single, continuing transaction (see People v Boykins, 85 AD3d 1554, 1555 [2011], lvdenied 17 NY3d 814 [2011]; cf.People v Alonzo, 16 NY3d 267, 270-271 [2011]; People v Kaid, 43 AD3d 1077, 1079-1080 [2007]). The firstcriminal act occurred when defendant fired a shot in the direction of an unmarked police car fromthe driveway of a residence, and the second criminal act occurred when defendant fired two shotsat Officer Ryan Hickey while being pursued by him into the backyard of the residence.Nevertheless, the indictment was not rendered duplicitous on that ground because only the latteract is sufficient to constitute the crimes of attempted aggravated murder of a police officer andattempted aggravated assault upon a police officer as charged in counts one and two of theindictment (cf. Boykins, 85 AD3d at 1555).
Count one of the indictment, as amplified by the bill of particulars, alleges in relevant partthat, "[o]n or about July 8, 2008, [at] approximately 11:15 PM, at or near 78 Evergreen Street, inthe City of Rochester, . . . [defendant], with intent to cause the death of anotherperson, Officer Ryan Hickey, . . . attempted to cause the death of Officer Hickey byfiring shots from a loaded handgun toward him" (emphasis added). Count two of theindictment, as amplified by the bill of particulars, alleged in relevant part that, "[o]n or about July8, 2008, [at] approximately 11:15 [*2]PM, at or near 78Evergreen Street, in the City of Rochester, . . . [defendant], with intent to causeserious physical injury to a person he knew or reasonably should have known to be a policeofficer engaged in the course of performing his official duties, Officer Ryan Hickey,. . . attempted to cause such injury by means of a deadly weapon, to wit, aloaded handgun" (emphasis added). Thus, counts one and two required the People to prove thatdefendant intended to cause death and serious physical injury to Officer Hickey, respectively(see Penal Law §§ 120.11, 125.26 [1] [a] [i]). The evidence that defendantfired the first shot in the direction of the unmarked police vehicle, however, does not support theconclusion that defendant intended to kill or seriously injure any particular police officer (see generally People v Ramos, 19NY3d 133, 135 [2012]). Rather, each of the four officers in that vehicle testified thatdefendant fired a single shot at the vehicle or in the direction of the officers generally beforefleeing. Indeed, the officer who had been driving the vehicle testified that, after he opened thedoor and put one foot out, "we were shot at" (emphasis added). Another officer testifiedthat, while exiting the vehicle, he "observed the defendant raise a revolver and fire one shot atus" (emphasis added). Officer Hickey similarly testified that he saw defendant fire "oneshot at us" (emphasis added). When asked where defendant was aiming, Officer Hickeyreplied "I can tell you the muzzle flash was pointing in our direction. I don't know exactlywhere he was aiming the gun" (emphasis added).
By contrast, the trial testimony was clear that, after defendant fled up the driveway andOfficer Hickey began to pursue him, defendant fired two shots at Officer Hickey. Officer Hickeytestified unequivocally that the two shots were directed at him: "He fired two shots at me.I could clearly see the muzzle flashes coming in my direction" (emphasis added). He explained:"I was chasing [defendant], and I could see the form of his body turn towards me, at which pointhe fired at me with the two shots." Officer Hickey's testimony to that effect was corroborated byother witnesses.
In light of the foregoing, we conclude that, while the evidence regarding the first shot firedby defendant may establish a mental state of depraved indifference, recklessness or an intent tokill a police officer, it does not establish that defendant specifically intended to kill or seriouslyinjure Officer Hickey (see People v Fernandez, 88 NY2d 777, 780 [1996]; People vCesario, 157 AD2d 795, 796 [1990], lv denied 75 NY2d 917 [1990]; cf. People vCabassa, 79 NY2d 722, 728 [1992]; People v Hollenquest, 309 AD2d 1159, 1159[2003], lv denied 3 NY3d 707 [2004]; see generally Penal Law § 15.05 [1],[3]). Thus, inasmuch as the evidence establishes only a single act of attempted aggravated murderand attempted aggravated assault as against Officer Hickey, i.e., the two shots defendant fireddirectly at Officer Hickey, we conclude that counts one and two of the indictment were notrendered duplicitous by the trial testimony (see generally CPL 200.50 [3]-[7]; People v Bowen, 60 AD3d 1319,1320 [2009], lv denied 12 NY3d 913 [2009]).
Defendant further contends that Supreme Court improperly allowed a prosecution witness totestify concerning prior bad acts by defendant, i.e., that, prior to the shootings at issue, defendantpossessed a gun inside the residence and was part of a group of men armed with guns whowanted to shoot at another house. With respect to the testimony concerning defendant's allegedprior gun possession, we conclude that such testimony was properly admitted as evidence of amotive for the shooting, i.e., to avoid capture in the presence of presumably illegal firearms andto complete the narrative of events by explaining why the police were summoned to the residence(see People v Giuca, 58 AD3d750, 750 [2009], lv denied 12 NY3d 915 [2009]; People v Clarke, 5 AD3d 807, 809-810 [2004], lv denied 2NY3d 797 [2004]; see generally People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Burnell, 89 AD3d 1118,1120-1121 [2011], lv denied 18 NY3d 922 [2012]). Contrary to the contention ofdefendant, the potential prejudice of such testimony did not outweigh its probative value (seeBurnell, 89 AD3d at 1121). Notably, defendant admitted in his statement to the police, whichwas read into evidence, that he "kn[e]w there were at least three guns in the house" [*3]and that, earlier in the day, he "put a loaded black .380 inside on topof the couch." In addition, defendant testified that he fled when the police arrived because hethought that the police were executing a search warrant on the house and he knew that there wereguns inside.
With respect to the witness's testimony concerning a group of armed men, we note that thewitness testified that she told the police "that there were some guys out[, ] they all had guns andthey wanted to shoot at [her] friend's house." Contrary to defendant's contention, that testimonydoes not constitute prior bad act evidence. The witness testified that there were several other menin the house, and her statement does not specifically implicate defendant. Even assuming,arguendo, that her testimony constitutes Molineux evidence, we conclude that thetestimony was admissible to establish motive and to complete the narrative of events (seeGiuca, 58 AD3d at 750), and that the prejudicial effect of the statement did not outweigh itsprobative value (see generally Alvino, 71 NY2d at 242). We note in particular that, priorto the challenged testimony, the jury already heard testimony from a police officer elicited bydefense counsel that there was a "beef between two possible gangs," that the two groups hadexchanged gunfire earlier in the day and that tensions were high on the street. The witness whotestified regarding the group of armed men also testified, without objection, that there was"conflict on and off" between two neighborhood groups and that "they were shooting at eachother."
In any event, we conclude that any error in the admission of the testimony concerning theprior bad acts is harmless. The evidence of defendant's guilt is overwhelming (see People vFinger, 266 AD2d 561, 561 [1999], affd 95 NY2d 894 [2000]; Burnell, 89AD3d at 1121; People v Thomas, 26AD3d 241, 242 [2006], lv denied 6 NY3d 898 [2006]), and there is no significantprobability that the jury would have acquitted defendant if the allegedly improperMolineux evidence had been excluded (see People v Orbaker, 302 AD2d 977,978 [2003], lv denied 100 NY2d 541 [2003]; People v Robinson, 202 AD2d1044, 1045 [1994], lv denied 83 NY2d 1006 [1994]; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]).
Finally, defendant's contention that the court erred in failing to give a limiting instruction atthe time the challenged testimony was admitted is unpreserved for our review inasmuch as he didnot request a contemporaneous instruction (see Finger, 266 AD2d 561, 561; see alsoBurnell, 89 AD3d at 1121; Thomas, 26 AD3d at 242). We decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Present—Smith, J.P., Peradotto, Carni, Lindley and Martoche, JJ.