| People v Henderson |
| 2013 NY Slip Op 07078 [110 AD3d 1353] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWilliam Henderson, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Rose, J.P. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered June 15, 2011, upon a verdict convicting defendant of the crimes of murderin the second degree, manslaughter in the first degree, burglary in the first degree, assaultin the second degree and burglary in the second degree (two counts).
Defendant went to the victim's apartment and accused the victim of stealing his crackcocaine. When a fight ensued and defendant was forced to retreat, he obtained a kitchenknife from a friend's nearby apartment "to even the odds" and returned to the victim'sapartment. As the two men grappled, defendant fatally stabbed the victim. In our priordecision in this case (74 AD3d 1567 [2010], mod 77 AD3d 1168 [2010]), wereversed defendant's convictions for, among other things, manslaughter in the firstdegree. Upon retrial, defendant was convicted of felony murder, manslaughter in the firstdegree, burglary in the first degree, two counts of burglary in the second degree andassault in the second degree.
Relying upon People vCahill (2 NY3d 14 [2003]), defendant argues on this appeal that the evidence offelony murder is legally insufficient because the predicate burglary is based upon hisconceded intent to commit an assault. We disagree. The Court of Appeals took care topoint out that its analysis in Cahill was confined to the capital murder statute(id. at 66). A felony murder conviction, on the other hand, may properly be basedon a burglary as the predicate felony where the intent at the time of entry is to commit anassault or murder (see People v [*2]Miller, 32NY2d 157, 159-161 [1973]; People v Steen, 107 AD3d 1608, 1609 [2013]; People v Couser, 12 AD3d1040, 1041 [2004], lv denied 4 NY3d 762 [2005]). Here, the trial evidencesupports the conclusion that defendant entered the apartment the second time with theintent to assault or murder the victim. Accordingly, there is no basis to disturb the verdictfinding defendant guilty of felony murder.
Nor are we persuaded that County Court erred by denying defendant's requests tocharge the jury. His request for a missing witness charge, made after the close of proof,was untimely (see People vMerritt, 96 AD3d 1169, 1172 [2012], lv denied 19 NY3d 1027 [2012];People v Rodney, 79 AD3d1363, 1365 [2010], lv denied 19 NY3d 1105 [2012]) and, in any event, itwas properly denied (see Peoplev Turner, 73 AD3d 1282, 1284 [2010], lv denied 15 NY3d 896 [2010]).Defendant's request to charge the lesser included offense of manslaughter in the seconddegree was also properly denied as there is no reasonable view of the evidence thatwould support a conclusion that he acted recklessly. He admitted that he intended to hurtthe victim when he stabbed him and, based on the nature and force of the fatal stabwound, the only reasonable view of defendant's conduct was that it was intentional(see People v Butler, 84 NY2d 627, 634 [1994]; People v Stanford, 87 AD3d1367, 1368 [2011], lv denied 18 NY3d 886 [2012]; People v Lopez, 72 AD3d593, 593 [2010], lv denied 15 NY3d 807 [2010]; People v Sussman,298 AD2d 205, 205 [2002], lv denied 99 NY2d 585 [2003]).
Lahtinen, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.