| People v DeLee |
| 2013 NY Slip Op 05377 [108 AD3d 1145] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDwight R. DeLee, Appellant. |
—[*1] Dwight R. Delee, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered August 18, 2009. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the first degree as a hate crime and criminal possession of a weapon inthe third degree.
It is hereby ordered that the judgment so appealed from is modified on the law byreversing that part convicting defendant of manslaughter in the first degree as a hatecrime (Penal Law §§ 125.20 [1]; 485.05 [1] [a]) and dismissing count oneof the indictment and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofmanslaughter in the first degree as a hate crime (Penal Law §§ 125.20 [1];485.05 [1] [a]) and criminal possession of a weapon in the third degree (§ 265.02[1]), defendant contends that the verdict is inconsistent insofar as the jury convicted himof manslaughter in the first degree as a hate crime but acquitted him of manslaughter inthe first degree (§ 125.20 [1]). We agree with that contention and therefore modifythe judgment accordingly.
Defendant was charged with killing the victim by shooting him with a rifle fromclose range. The victim was a young man who dressed as a woman and was known to behomosexual. The indictment charged defendant with three offenses: (1) murder in thesecond degree, alleging that he intentionally killed the victim due to his sexualorientation; (2) intentional murder in the second degree; and (3) criminal possession of aweapon in the third degree. The case proceeded to trial and, without objection fromdefendant or the People, County Court submitted several lesser included offenses to thejury. With respect to murder in the second degree as a hate crime, the court charged thelesser included offenses of manslaughter in the first degree as a hate crime andmanslaughter in the second degree as a hate crime. For murder in the second degree, thecourt charged the lesser included offenses of manslaughter in the first degree andmanslaughter in the second degree.
By its verdict, the jury found defendant guilty of manslaughter in the first degree as ahate [*2]crime and criminal possession of a weapon inthe third degree. The jury acquitted defendant of all remaining charges, except formanslaughter in the second degree as a hate crime, which was not reached given theverdict on manslaughter in the first degree as a hate crime. After the verdict was renderedbut before the jurors were discharged, defense counsel stated, "Judge so that we canpreserve the record here. We need to raise a motion to vacate a conviction on themanslaughter in the first degree as a hate crime, as an inconsistent verdict with acquittalof manslaughter in the first degree." Defendant thereby preserved for our review hiscontention on appeal that the verdict is inconsistent in that respect (see People vHorning, 263 AD2d 955, 955 [1999], lv denied 94 NY2d 824 [1999]; cf. People v Carter, 7 NY3d875, 876 [2006]). Although the court stated that it understood defense counsel'sposition, the court nevertheless discharged the jurors and did not direct them to reconciletheir verdict. Defendant later moved to set aside the verdict with respect to manslaughterin the first degree as a hate crime, contending that it was inconsistent with the jury'sfinding of not guilty on the charge of manslaughter in the first degree. The court deniedthe motion without explanation. This appeal ensued.
"A verdict is inconsistent or repugnant . . . where the defendant isconvicted of an offense containing an essential element that the jury has found thedefendant did not commit" (People v Trappier, 87 NY2d 55, 58 [1995]). "Averdict shall be set aside as repugnant only when it is inherently inconsistent whenviewed in light of the elements of each crime as charged to the jury" (People v Brown, 102 AD3d704, 704 [2013]; see People v Tucker, 55 NY2d 1, 4 [1981], reargdenied 55 NY2d 1039 [1982]), "without regard to the accuracy of those instructions"(People v Muhammad, 17NY3d 532, 539 [2011]). "The underlying purpose of this rule is to ensure that anindividual is not convicted of 'a crime on which the jury has actually found that thedefendant did not commit an essential element, whether it be one element or all' "(id. at 539, quoting Tucker, 55 NY2d at 6).
Here, all of the elements of manslaughter in the first degree are elements ofmanslaughter in the first degree as a hate crime. The court thus properly instructed thejury that the only difference between the two crimes in this case is that manslaughter inthe first degree as a hate crime has an added element requiring the People to prove thatdefendant intentionally selected the victim due to his sexual orientation. By acquittingdefendant of manslaughter in the first degree, the jury necessarily found that the Peoplefailed to prove beyond a reasonable doubt at least one element of manslaughter in thefirst degree. To find defendant guilty of manslaughter in the first degree as a hate crime,however, the jury must have found that the People proved beyond a reasonable doubt allof the elements of manslaughter in the first degree, plus the added element that defendantselected the victim due to his sexual orientation. It therefore follows that the verdict isinconsistent.
Significantly, the People do not dispute that the verdict is inconsistent based on theelements of the offenses as charged to the jury. Instead, the People contend that theinconsistent verdict should be allowed to stand because the court's remaining instructionsmay reasonably have been interpreted by the jurors as giving them a choice of convictingdefendant of manslaughter in the first degree as a hate crime or manslaughter inthe first degree. We reject that contention. As a preliminary matter, we note that the juryforeperson, in her affidavit submitted by the People in opposition to defendant's posttrialmotion, did not state that the jurors interpreted the court's instructions in the mannersuggested by the People, and there is no other evidence in the record to support thePeople's theory. In any event, even assuming, arguendo, that the court suggested to thejurors in its instructions that they could convict defendant of only one of themanslaughter in the first degree charges, we conclude that such a "suggestion" would beimmaterial inasmuch as the Court of Appeals has made clear that we may "look[ ] to therecord only to review the jury charge so as to ascertain what essential elementswere described by the trial court" (Tucker, 55 NY2d at 7 [emphasis added];see generally Muhammad, 17 NY3d at 539).[*3]
Relying on People v Mason (101 AD3d 1659 [2012], revd on othergrounds 21 NY3d 962 [2013]), the Peoplefurther contend that the "split verdict" is not inconsistent or repugnant because it mayhave been the result of mistake, compromise or an exercise of mercy by the jury. Wereject that contention as well. In Mason, the jury's verdict was apparentlyillogical but not, as here, legally or theoretically impossible based on the elements of theoffenses charged to the jury. A verdict that is legally or theoretically impossible cannotbe upheld on the ground that the verdict was the result of mistake, compromise or mercy(see Muhammad, 17 NY3d at 539-540; Tucker, 55 NY2d at 8-9).
We respectfully disagree with our dissenting colleague that ordinary or plainmanslaughter in the first degree is a lesser included offense of manslaughter in the firstdegree as a hate crime. Indeed, both offenses are class B violent felonies, and itthus cannot be said that one is the lesser of the other. We therefore disagree with thedissent that the court should have instructed the jury that, if it found defendant guilty ofmanslaughter in the first degree as a hate crime, it should not consider the second count,charging manslaughter in the first degree. The court's "instructions to the jury will beexamined only to determine whether the jury, as instructed, must have reached aninherently self-contradictory verdict" (Tucker, 55 NY2d at 8) and here, uponexamining the court's instructions, we conclude that they did not necessitate aninconsistent verdict (see generally People v Johnson, 87 NY2d 357, 360 [1996]).In any event, even crediting the theory of the dissent that ordinary or plain manslaughterin the first degree is a lesser included offense of manslaughter in the first degree as a hatecrime, the verdict is nevertheless inconsistent because the jury found defendant not guiltyof ordinary or plain manslaughter in the first degree, and thus "the jury . . .necessarily decided that one of the essential elements [of ordinary or plain manslaughterin the first degree] was not proven beyond a reasonable doubt" (Muhammad, 17NY3d at 539).
Although it is true, as the dissent points out, that the jurors may have complied withthe "letter and spirit of the law" and that jurors, as lay persons, are not legal experts, inour view, both of those points are immaterial. The role of the court, as a legal expert, is toinstruct the jurors on the law and where, as here, an attorney timely objects to a verdict asinconsistent, it is incumbent upon the court to inform the jurors of the defect in theirverdict and to direct them to resume deliberations so as to render a proper verdict(see CPL 310.50 [2]; People v Robinson, 45 NY2d 448, 452 [1978]).The court's failure to do so in this case constitutes reversible error. Whether the verdict is"reasonable and logical," as the dissent concludes, is of no moment inasmuch as theverdict is "inherently repugnant on the law" (Muhammad, 17 NY3d at 538).
In sum, based on our review of the elements of the offenses as charged to the jury,we conclude that the verdict is inconsistent, i.e., "legally impossible" (id. at 539),insofar as it finds defendant guilty of manslaughter in the first degree as a hate crime butnot guilty of manslaughter in the first degree. We therefore modify the judgmentaccordingly (see generally People v Hampton, 61 NY2d 963, 964 [1984]).
We have reviewed defendant's remaining contentions in both his main andsupplemental pro se briefs and conclude that they lack merit.
All concur except Peradotto, J., who dissents and votes to affirm in the followingmemorandum.
Peradotto, J. (dissenting). I respectfully dissent because I disagree with the majoritythat the verdict is inconsistent insofar as the jury convicted defendant of manslaughter inthe first degree as a hate crime (Penal Law §§ 125.20 [1]; 485.05 [1] [a]) butacquitted him of ordinary manslaughter in the first degree (§ 125.20 [1]). In myview, the jury's verdict is reasonable and logical based upon the elements of the crimes ascharged to the jury and, therefore, should not be disturbed.[*4]
On November 14, 2008, the victim was thefront-seat passenger in a vehicle driven by his brother. Their friend was sitting in theback seat of the vehicle. The victim was homosexual, regularly dressed in women'sclothing, and preferred to be known as a female. According to more than one witness, thevictim's sexual orientation, clothing preferences and gender identity were commonknowledge in the community. The victim's brother pulled up in front of a house where anumber of people were congregating, and the occupants of the vehicle proceeded toconverse with some friends. Meanwhile, witnesses overheard several members of adifferent group of people on the street, which included defendant, making derogatoryremarks about homosexuals. Defendant then went into the house, retrieved a rifle, andwalked over to the victim's vehicle. As defendant approached the vehicle, a witnessoverheard him say, "We don't play that faggot shit." Defendant then pointed the rifle intothe open window of the vehicle and fired a single shot. Another witness testified that,immediately prior to the shooting, defendant made comments to the effect that he was"not done with this faggot[ ] . . . [He]'s not done with this faggot shit, andthey needed to get out of there." A third witness heard defendant say, "Get you faggots,get out of here . . . Get the f . . . out of here." The bulletgrazed the victim's brother and struck the victim, who died shortly thereafter as a resultof extensive internal bleeding.
Defendant was subsequently charged in a three-count indictment with murder in thesecond degree as a hate crime, murder in the second degree, and criminal possession of aweapon in the third degree. Without objection from defendant or the People, CountyCourt also submitted several lesser included offenses to the jury. Specifically, the courtcharged manslaughter in the first degree as a hate crime and manslaughter in the seconddegree as a hate crime as lesser included offenses of murder in the second degree as ahate crime, and manslaughter in the first and second degrees as lesser included offensesof murder in the second degree. In its charge to the jury, the court emphasized that therewere two sets of charged offenses: (1) murder in the second degree as a hate crime andthe lesser included offenses of manslaughter in the first and second degrees as hatecrimes as charged in the first count of the indictment; and (2) murder in the seconddegree and the lesser included offenses of manslaughter in the first and second degrees,i.e., simple or ordinary (hereafter, non-hate) murder or manslaughter as charged in thesecond count of the indictment. After explaining the elements of the hate crime offenses,the court told the jury that, "[i]rrespective of your verdicts regarding the crime of murderin the second degree as a hate crime, and the lesser included offenses of manslaughter inthe first degree and manslaughter in the second degree as a hate crime, whether it beguilty or not guilty, you must next go on to consider the second count of the indictment,murder in the second degree, and the lesser included offenses of manslaughter in the firstdegree and manslaughter in the second degree." The court further stated that "[t]heSecond Count of the indictment charges the same murder as alleged in the FirstCount but not as a hate crime" (emphasis added).
In response to a jury note, the court further instructed the jury as follows: "The bestway I can define the difference between Count One, which is murder in the seconddegree as a hate crime, and the lesser-included offenses of manslaughter in the firstdegree and manslaughter in the second degree as a hate crime, and Count Two, which isjust murder in the second degree, and then the lesser included offenses of manslaughterin the first degree and manslaughter in the second degree, is one element. One elementseparates each of the charges. That element is when that person intentionally selects theperson against whom the offense is committed . . . in whole or in substantialpart because of a belief or perception regarding the sexual orientation of a person,regardless of whether the belief or perception is correct. That element is not included inmurder in the second degree, manslaughter in the first degree, or manslaughter in thesecond degree. It is only included in murder in the second degree as a hate crime,manslaughter in the first degree as a hate crime, and manslaughter in the second degreeas a hate crime. There lies the difference between the two. That element." The courtcontinued: "With regard to the [*5]Second Count, murderin the second degree [and the lesser includeds], they are exactly the same as the hatecrimes without the added element that the accused selected the person against whom theoffense was committed or intended to be committed in whole or in substantial partbecause of a belief or perception regarding the sexual orientation of a person."
The jury returned the following verdict:
Murder in the second degree as a hate crime: NOT GUILTY
Manslaughter in the first degree as a hate crime: GUILTY
Manslaughter in the second degree as a hate crime: NOT REACHED
Murder in the second degree: NOTGUILTY
Manslaughter in the first degree: NOT GUILTY
Manslaughter in the second degree: NOT GUILTY
Criminal possession of a weapon 3ddegree: GUILTY
As the majority notes, defendant preserved for our review his contention that theverdict is inconsistent because the jury convicted him of manslaughter in the first degreeas a hate crime but acquitted him of ordinary manslaughter in the first degree, inasmuchas he objected to the alleged inconsistency before the jury was discharged (cf. People v Sharp, 104 AD3d1325, 1326 [2013]). Contrary to the conclusion of the majority, however, I rejectdefendant's contention and conclude that the jury verdict should stand.
It is well settled that " 'a verdict as to a particular count shall be set aside' asrepugnant 'only when it is inherently inconsistent when viewed in light of theelements of each crime as charged to the jury' . . . without regard to theaccuracy of those instructions" (People v Muhammad, 17 NY3d 532, 539 [2011], quotingPeople v Tucker, 55 NY2d 1, 4 [1981], rearg denied 55 NY2d 1039[1982] [emphasis added]; see People v Hampton, 61 NY2d 963, 964 [1984]["The determination as to the repugnancy of the verdict is made solely on the basis of thetrial court's charge and not on the correctness of those instructions"]). Thus, the criticaldetermination is "whether the jury, as instructed, must have reached an inherentlyself-contradictory verdict" (Tucker, 55 NY2d at 8 [emphasis added]). Theconcern underlying the repugnancy rule is that "a defendant should not be convicted of acrime when the jury has found that he [or she] did not commit one or more of its essentialelements" (People v Loughlin, 76 NY2d 804, 806 [1990]).
In my view, the jury charge, coupled with the structure and order of the verdict sheet,conveyed to the jury that defendant was charged with hate and non-hate crimes basedupon the same act, i.e., the fatal shooting of the victim. The jury's verdict and, indeed, thenotes it sent to the court, reflect the jury's determination that the shooting at issue was ahate crime, i.e., that defendant intentionally selected the victim because of his sexualorientation (see Penal Law § 485.05 [1] [a]). During deliberations, the jurysent out a note requesting "the definition of [*6]manslaughter murder, hate crime" (emphasisadded). The court, apparently misunderstanding the jury's request, proceeded to discussthe difference between count one, the hate crimes, and count two, the "non-hate" crimes.The jury then sent out a second note requesting an explanation of "the difference. . . between manslaughter 1 and manslaughter 2, as a hate crimeonly" (emphasis added). The above notes indicate that the jury was convinced, asamply supported by the record, that the fatal shooting of the victim constituted a hatecrime, but that the jury was grappling with whether to convict defendant of the hatecrime of murder in the second degree, manslaughter in the first degree, or manslaughterin the second degree. After the jury determined that defendant was guilty ofmanslaughter in the first degree as a hate crime, it proceeded to the second count of theindictment, as the court instructed it to do, and found defendant not guilty of ordinarymurder in the second degree and the lesser included offenses thereof.
If, as the majority states, it is "legally impossible" to commit manslaughter in the firstdegree as a hate crime without thereby committing ordinary manslaughter in the firstdegree because "all of the elements of manslaughter in the first degree are elements ofmanslaughter in the first degree as a hate crime," then ordinary or plain manslaughter inthe first degree is a lesser included offense of manslaughter in the first degree as a hatecrime (see CPL 1.20 [37]; People v Glover, 57 NY2d 61, 63 [1982]), andthe jury should have been instructed accordingly. Although the majority states that bothoffenses are class B violent felony offenses and "it thus cannot be said that one is thelesser of the other," the statute imposes an enhanced sentence on a defendant convictedof manslaughter in the first degree as a hate crime in comparison to plain or ordinarymanslaughter in the first degree (see Penal Law § 485.10; People v Assi, 14 NY3d335, 338 [2010]). The court therefore should have instructed the jury that, if itsverdict on the first count was guilty, it should not consider the second count (seeCJI2d[NY] Lesser Included Offense; see generally People v Johnson, 81 AD3d 1428, 1429[2011], lv denied 16 NY3d 896 [2011]). Indeed, the court provided thatinstruction relative to manslaughter in the first and second degrees as a hate crime, whichthe jury followed by not reaching the lesser charge of manslaughter in the second degreeonce it found defendant guilty of the greater charge of manslaughter in the first degree.Here, however, the court specifically instructed the jury that, "[i]rrespectiveof your verdicts regarding the crime of murder in the second degree as a hate crime,and the lesser included offenses of manslaughter in the first degree and manslaughter inthe second degree as a hate crime, whether it be guilty or not guilty, you mustnext go on to consider the second count of the indictment, murder in the second degree,and the lesser included offenses of manslaughter in the first degree and manslaughter inthe second degree" (emphasis added). Thus, once the jury determined that defendant wasguilty of a hate crime as charged in the first count of the indictment, that is, thatdefendant acted with the enhanced intent of targeting the victim based upon his sexualorientation, it was entirely reasonable for the jury to determine relative to the secondcount of the indictment that defendant was not guilty of "murder . . . notas a hate crime" or "just murder," as the court characterized it (emphasesadded).
Indeed, an affidavit of the jury foreperson, sworn to exactly one week after theverdict, states that, after concluding that defendant was the shooter, the jury proceeded to"deliberate on whether the case was a hate crime as defined by the judge. We determinedthat [defendant]'s motive and actions did meet the criteria as defined by the judge for ahate crime. We came to that decision relatively quickly." According to the foreperson, thejury then "discussed the other charges . . . that were not hate crimes, butdid not find him guilty of those charges once we had determined that this was a hatecrime" (emphasis added). In my view, that analysis makes perfect sense in light ofthe court's instructions and the distinct, "particularly heinous nature of criminal acts thatare committed against individuals because of prejudice" (Mem of Atty Gen, Bill Jacket,L 2000, ch 107). In enacting the Hate Crimes Act of 2000, the legislature "found" and"determined" in Penal Law § 485.00 that "[h]ate crimes do more than threaten thesafety and welfare of all citizens. They inflict on victims incalculable physical andemotional [*7]damage and tear at the very fabric of freesociety. Crimes motivated by invidious hatred toward particular groups not only harmindividual victims but send a powerful message of intolerance and discrimination to allmembers of the group to which the victim belongs. Hate crimes can and do intimidateand disrupt entire communities and vitiate the civility that is essential to healthydemocratic processes." According to the legislature, the then-current law did "notadequately recognize the harm to public order and individual safety that hate crimescause. Therefore, our laws must be strengthened to provide clear recognition of thegravity of hate crimes and the compelling importance of preventing their recurrence"(id. [emphasis added]; see Assi, 14 NY3d at 338). As New York'sAttorney General stated in support of the hate crime legislation, "[b]y employing thisnew law to the fullest, our government will send a powerful message to victims andothers like them that, regardless of personal characteristics or lifestyle, they are valuedmembers of the community, and will make clear to victimizers that this state does nottolerate hatred founded upon bias and prejudice" (Mem of Atty Gen, Bill Jacket, L2000, ch 107 [emphasis added]). In my view, the jury complied with both the letter andspirit of the law by concluding, based upon the overwhelming evidence before it, that thefatal shooting of the victim was a hate crime, not a "non-hate" or "ordinary" criminalact. It cannot be said that the jury, as instructed, "must have reached aninherently self-contradictory verdict" (Tucker, 55 NY2d at 8).
In sum, I conclude that we should not set aside the jury's verdict and modify thejudgment herein based upon a result that the court's instructions permitted or even invited(see generally Muhammad, 17 NY3d at 539; Tucker, 55 NY2d at 8). Thejury determined that defendant shot the victim because of his sexual orientation and thusthat defendant was guilty of manslaughter in the first degree as a hate crime. Defendantdid not simply shoot the victim for some other "non-hate" reason or no reason at all, andthus the jury determined that defendant was not guilty of "ordinary" manslaughter in thefirst degree. In my view, this is in accord with "the fundamental principle that the juryshould be permitted to render a verdict that fully reflects defendant's culpability"(People v Johnson, 87 NY2d 357, 360-361 [1996]). Jurors are not legal expertsand, given the instructions that were provided in this case, I cannot conclude that thejury's verdict was inconsistent, illogical, or contradictory. I otherwise agree with themajority that defendant's remaining contentions in his main and pro se supplementalbriefs lack merit, and I would therefore affirm the judgment. Present—Scudder,P.J., Peradotto, Lindley, Valentino and Martoche, JJ.