| People v Jones |
| 2012 NY Slip Op 07439 [100 AD3d 1362] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alan L. Jones,Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego, for respondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedNovember 16, 2009. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the conviction of murder in the second degree (Penal Law § 125.25 [2]) tomanslaughter in the second degree (§ 125.15 [1]) and vacating the sentence and asmodified the judgment is affirmed, and the matter is remitted to Oswego County Court forsentencing on the conviction of manslaughter in the second degree.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder inthe second degree (Penal Law § 125.25 [2] [depraved indifference murder]), defendantcontends, inter alia, that the evidence is legally insufficient to support the conviction. We agree.
Turning first to defendant's legal sufficiency contention, we conclude that, contrary to thePeople's assertion, this issue is preserved for our review because the trial judge "plainly wasaware of, and expressly decided, the question raised on appeal" concerning whether the evidenceis legally sufficient to support the conviction (People v Eduardo, 11 NY3d 484, 493[2008]; see CPL 470.05 [2]; People v Prado, 4 NY3d 725, 726 [2004], rearg denied 4NY3d 795 [2005]). With regard to the merits, Penal Law § 125.25 (2) provides that "[a]person is guilty of murder in the second degree when[,] . . . [u]nder circumstancesevincing a depraved indifference to human life, he [or she] recklessly engages in conduct whichcreates a grave risk of death to another person, and thereby causes the death of another person."That crime " 'is best understood as an utter disregard for the value of human life—awillingness to act not because one intends harm, but because one simply doesn't care whethergrievous harm results or not' " (People vFeingold, 7 NY3d 288, 296 [2006]). "The culpable mental state, contrasting it from theintent to take one's life, is such that one is 'recklessly indifferent, depravedly so, to whether' theinjury to or death of another occurs" (People v Bussey, 19 NY3d 231, 236 [2012], quoting People v Gonzalez, 1 NY3d 464,468 [2004]).
It is well settled " ' "that, except in rare and extraordinary circumstances, . . .one person's [*2]attack on another, no matter how violent or howgreat the risk of harm it creates, does not rise to the level of depravity and indifference to lifecontemplated by the statutes defining crimes committed under circumstances evincing adepraved indifference to human life" ' " (People v Boutin, 81 AD3d 1399, 1400 [2011], lv denied 17NY3d 792 [2011]; see People vTaylor, 15 NY3d 518, 522 [2010]; People v Suarez, 6 NY3d 202, 210-211 [2005]). Indeed, "where adefendant's conduct endangers only a single person, to sustain a charge of depraved indifferencethere must be proof of 'wanton cruelty, brutality or callousness directed against a particularlyvulnerable victim, combined with utter indifference to the life or safety of the helpless target ofthe perpetrator's inexcusable acts' " (People v Coon, 34 AD3d 869, 870 [2006], quoting Suarez,6 NY3d at 213; see Boutin, 81 AD3d at 1400). The Court of Appeals has explained thatthere are two recurring "fact patterns in which a one-on-one killing could result in a depravedindifference conviction" (Taylor, 15 NY3d at 522). "The first is 'when the defendantintends neither to seriously injure, nor to kill, but nevertheless abandons a helpless andvulnerable victim in circumstances where the victim is highly likely to die' " (id., quotingSuarez, 6 NY3d at 212). "The second is when the 'defendant—acting with aconscious objective not to kill but to harm—engages in torture or a brutal, prolonged andultimately fatal course of conduct against a particularly vulnerable victim' " (id. at 523,quoting Suarez, 6 NY3d at 212).
The facts of this case do not fit within either of the aforementioned fact patterns. The firstfact pattern is inapposite here inasmuch as the evidence at trial established that defendant did notabandon the victim and, instead, demonstrated that defendant called 911 regarding the victim'sasphyxiation, administered CPR and was present at the scene when the authorities arrived. Thesecond fact pattern is likewise inapposite to this case inasmuch as the evidence did not establishthat defendant "engage[d] in torture or a brutal, prolonged and ultimately fatal course of conductagainst a particularly vulnerable victim" (id. [internal quotation marks omitted]). Indeed,a treating emergency medical technician (EMT) testified that he conducted a "head to toe"examination of the victim, but found no injuries of note other than marks to her neck. AnotherEMT and a flight paramedic each testified that they did not see any injuries other than the markson the victim's neck. Moreover, although the Medical Examiner testified that she noticedbruising on the victim's left forearm, left knee and left leg, she opined that those injuries"occurred at or about the time [the victim] was found unresponsive" and further testified that thevictim could not have been strangled for a period of more than five minutes. Based on the above,we conclude that the conviction of depraved indifference murder is not supported by legallysufficient evidence (see id.; see also Bussey, 19 NY3d at 236; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
We now turn to the issue of the remedy. Here, the jury convicted defendant of depravedindifference murder, and as stated above one is guilty of that crime when, "[u]nder circumstancesevincing a depraved indifference to human life, he recklessly engages in conduct which creates agrave risk of death to another person, and thereby causes the death of another person" (Penal Law§ 125.25 [2]). In convicting defendant, the jury concluded that defendant acted recklesslyin causing the victim's death, i.e., that he was "aware of and consciously disregard[ed] asubstantial and unjustifiable risk that [death would] occur" (§ 15.05 [3]). Recklessness isalso an element of manslaughter in the second degree (see § 125.15 [1]). Thus,because the evidence supports the conclusion that "defendant's actions, although not depraved,were reckless" (People v Atkinson,7 NY3d 765, 767 [2006]), "reducing the depraved indifference murder conviction tomanslaughter in the second degree is appropriate" (Bussey, 19 NY3d at 236; seeAtkinson, 7 NY3d at 766-767; People v Little, 83 AD3d 1389, 1392 [2011]; see also CPL470.15 [2] [a]). We therefore modify the judgment accordingly.
Defendant's further contention that the verdict is against the weight of the evidence lacksmerit. Preliminarily, we note that, given our determination that the evidence is legally [*3]insufficient to support the depraved indifference murder conviction,defendant's contention with regard to that conviction is moot. However, viewing the evidence inlight of the elements of the lesser included offense of manslaughter in the second degree (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that a verdict convicting defendant of that crime would notbe against the weight of the evidence (see generally People v Pallagi, 91 AD3d 1266, 1270 [2012]; People v Lettley, 64 AD3d 901,903 [2009], lv denied 13 NY3d 836 [2009]; see generally People v Bleakley, 69NY2d 490, 495 [1987]). "Generally, [w]e accord great deference to the resolution of credibilityissues by the trier of fact because those who see and hear the witnesses can assess their credibilityand reliability in a manner that is far superior to that of reviewing judges who must rely on theprinted record" (People v Vanlare,77 AD3d 1313, 1315 [2010], lv denied 15 NY3d 956 [2010] [internal quotationmarks omitted]; see People v Curry,82 AD3d 1650, 1651 [2011], lv denied 17 NY3d 805 [2011]). Under thesecircumstances, we see no reason to disturb the jury's credibility determinations.
Additionally, we reject defendant's contention that he was denied a fair trial by thecumulative effect of alleged errors at trial, i.e., courtroom outbursts and various actions ofCounty Court, defense counsel and the prosecutor. Defendant's contention that the court abusedits discretion by inadequately addressing four outbursts by spectators is unpreserved for ourreview (see CPL 470.05 [2]), and in any event lacks merit (see People vPantoliano, 127 AD2d 857, 857 [1987], lv denied 70 NY2d 715 [1987]; People vManners, 120 AD2d 680, 680 [1986]). The further contention of defendant that the courtshould have granted his motion for recusal is unpreserved for our review inasmuch as defendantdid not raise before the motion court the ground for recusal that he asserts on appeal (seeCPL 470.05 [2]; People vStrohman, 66 AD3d 1334, 1335-1336 [2009], lv dismissed 13 NY3d 911[2009]), and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). Defendant failed to preserve for ourreview his challenge to the jury instructions (see CPL 470.05 [2]), and in any event thatcontention lacks merit inasmuch as " 'the jury, hearing the whole charge, would gather from itslanguage the correct rules [that] should be applied in arriving at [a] decision' " (People vLadd, 89 NY2d 893, 895 [1996], quoting People v Russell, 266 NY 147, 153 [1934];see People v Bartlett, 89 AD3d1453, 1454 [2011], lv denied 18 NY3d 881 [2012]). Viewing the evidence, the lawand the circumstances of this case, in totality and as of the time of the representation, we rejectdefendant's further contention that he was denied effective assistance of counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). We also conclude that any allegedprosecutorial misconduct has not "caused . . . substantial prejudice to the defendant"(People v Rubin, 101 AD2d 71, 77 [1984], lv denied 63 NY2d 711 [1984]).
Finally, we reject the contention of defendant that the judgment should be reversed becauseof the improper conduct of the jury. Defendant's contentions that the jury was confused withrespect to the court's instructions regarding depraved indifference murder, that certain jurorsconsidered evidence not introduced at trial, and that one juror was "browbeaten" into his verdictare properly before us (see People vGibian, 76 AD3d 583, 587 [2010], lv denied 15 NY3d 920 [2010]), but theylack merit inasmuch as " 'a jury verdict [generally] may not be impeached by probes into thejury's deliberative process' " (People vJerge, 90 AD3d 1486, 1486 [2011], quoting People v Maragh, 94 NY2d 569,573 [2000]). A verdict, however, may be impeached by a showing of improper influence (seeid.). Nevertheless, defendant's further contention that the jury was improperly swayed byoutside influences is not properly before us inasmuch as defendant did not move to set aside theverdict based on that alleged jury misconduct (see People v Bautista, 25 AD3d 341, 341 [2006], lv denied6 NY3d 809 [2006]). In any event, defendant's complaints of alleged outside influence areunsupported by the record. Present—Fahey, J.P., Peradotto, Lindley and Sconiers, JJ.