| People v Scott |
| 2013 NY Slip Op 03695 [106 AD3d 1030] |
| May 22, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Hakim B. Scott, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(DiMango, J.), rendered August 5, 2010, convicting him of manslaughter in the firstdegree and attempted assault in the first degree, upon a jury verdict, and sentencing himto a determinate term of imprisonment of 25 years plus a period of five years ofpostrelease supervision on the conviction of manslaughter in the first degree and adeterminate term of imprisonment of 12 years plus a period of five years of postreleasesupervision on the conviction of attempted assault in the first degree, to runconsecutively.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the term of imprisonment imposed on the conviction of attemptedassault in the first degree from a determinate term of imprisonment of 12 years to adeterminate term of imprisonment of four years; as so modified, the judgment isaffirmed.
In the early morning hours of December 7, 2008, the defendant, his codefendantKeith Phoenix, and Demitrius Nathaniel were driving home from a party in an SUV.Phoenix was driving, Nathaniel was seated in the front passenger seat, and the defendantwas seated in the back seat. While the SUV was stopped at a red light, two pedestrians,Jose Sucuzhaney (hereinafter Jose) and his brother, Romel Sucuzhaney (hereinafterRomel), crossed in front of the SUV. As they were walking, Jose was supportivelyholding Romel, who was inebriated from a night of heavy drinking. As the brotherspassed the SUV, Phoenix yelled a homosexual epithet from the car window. Theaccounts vary, but in response to Phoenix's words, Jose either lifted his foot as if to kickthe SUV, or in fact actually kicked the SUV. Almost immediately, the defendant exitedthe vehicle brandishing a glass beer bottle, which he smashed over Jose's head. Jose fellto the ground, and the defendant chased Romel down the block with the remains of thebroken bottle. Phoenix exited the SUV, and as the defendant was chasing Romel with thebottle, Phoenix removed a baseball bat from the rear of the SUV and proceeded to beatJose with the bat. When the defendant returned to the scene, he, Phoenix, and Nathanielgot into the SUV and fled the scene. Jose was left unconscious from the attack and diedfrom his injuries the following day.[*2]
With respect to the attack on Jose, the defendantand Phoenix were jointly indicted, on theories of accessorial liability, for murder in thesecond degree as a hate crime, murder in the second degree, manslaughter in the firstdegree as a hate crime, manslaughter in the first degree, assault in the first degree as ahate crime, and assault in the first degree. With respect to the attempted attack on Romelwith the broken bottle, the defendant and Phoenix were additionally indicted, on theoriesof accessorial liability, for attempted assault in the first degree as a hate crime andattempted assault in the first degree.
The defendant was acquitted of murder in the second degree as a hate crime, murderin the second degree, and manslaughter in the first degree as a hate crime, and convictedof manslaughter in the first degree. The Supreme Court instructed the jury not to reachthe counts of assault in the first degree as a hate crime or assault in the first degree unlessit first acquitted the defendant of the murder and manslaughter counts. Thus, since thejury convicted the defendant of manslaughter in the first degree, it did not reach theassault counts. In addition, the defendant was convicted of attempted assault in the firstdegree based on his chasing Romel with the broken bottle. Phoenix was convicted at aseparate trial of murder in the second degree as a hate crime and attempted assault in thefirst degree as a hate crime. The defendant appeals.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establishbeyond a reasonable doubt that the defendant committed the crime of manslaughter in thefirst degree (see Penal Law § 125.20 [1]), in connection with the death ofJose. Moreover, upon the exercise of our factual review power, we are satisfied that theverdict of guilt with respect to manslaughter in the first degree was not against the weightof the evidence (see CPL 470.15 [5]; People v Carncross, 14 NY3d 319 [2010]; People v DaCosta, 6 NY3d181, 184 [2006]; People v Matos, 83 NY2d 509 [1994]; People vKane, 213 NY 260 [1915]). The defendant does not contest on appeal the legal orfactual sufficiency of the evidence with regard to his conviction for the attempted assaultof Romel.
The defendant was not deprived of his right to be present at all material stages of histrial when the Supreme Court, after discussing an error in the jury charge with counselfor both sides, but without counsel or the defendant present in the courtroom, instructedthe jury as to the correct dates that the crimes were alleged to have been committed(see People v Aveille, 148 AD2d 461, 462 [1989]; cf. People v Cain, 76NY2d 119 [1990]). Further, the defendant failed to establish that he was deprived of theeffective assistance of counsel (see Strickland v Washington, 466 US 668,687-694 [1984]; People v Benevento, 91 NY2d 708, 714 [1998]).
The defendant was sentenced to a determinate term of imprisonment of 25 years formanslaughter in the first degree, to run consecutively with a determinate term ofimprisonment of 12 years for attempted assault in the first degree, for an aggregate totalof 37 years of imprisonment. In the exercise of our discretion, we reduce the term ofimprisonment on the conviction for attempted assault in the first degree from adeterminate term of 12 years to a determinate term of four years (see Penal Law§ 470.15), which reflects better proportionality between the total sentencesimposed upon the defendant for his conduct and the sentence imposed upon thecodefendant for his conduct (see People v Crump, 197 AD2d 414, 415 [1993];People v Andrews, 176 AD2d 530, 531-532 [1991]). Skelos, J.P., Dillon, Halland Miller, JJ., concur.