| People v Flanders |
| 2013 NY Slip Op 07290 [111 AD3d 1263] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vPernell A. Flanders, Appellant. |
—[*1] Pernell A. Flanders, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered January 11, 2011. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree, assault in the first degree, criminal possession ofa weapon in the second degree and reckless endangerment in the first degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, attempted murder in the second degree (Penal Law §§110.00, 125.25 [1]), assault in the first degree (§ 120.10 [1]) and recklessendangerment in the first degree (§ 120.25). The evidence at trial established that,on the date in question, defendant and a passenger in his vehicle approached the victimand his fiancÉe. A physical altercation ensued during which defendant struck thevictim with a .380 caliber semi-automatic pistol. Defendant then shot the pistol at thevictim and in the vicinity of the victim's fiancÉe. Defendant returned to his vehicleto obtain a second firearm, i.e., a .22 caliber rifle, which he then used to shoot at thevictim, in the vicinity of the victim's fiancÉe. The victim sustained multiplegunshot wounds to the neck, chin, shoulder and leg. With respect to the assault andreckless endangerment charges, the indictment alleged that defendant committed thoseoffenses with "a .380 semi-automatic pistol and a .22 rifle" (emphasis added).
During its charge, County Court instructed the jury that it was alleged that defendantcommitted assault in the first degree by intentionally injuring the victim with a "380semi-automatic pistol and a 22 caliber rifle" (emphasis added). The court furtherinstructed the jury that it was alleged that defendant committed reckless endangerment inthe first degree by firing "a 380 semi-automatic pistol and a 22 rifle in thedirection of [the victim's fiancÉe]" (emphasis added). The jurors sent a note askingif they must believe that both firearms were involved in order to find defendant guilty ofthe assault and reckless endangerment charges. The court instructed the jury that it "mustbe proven to your satisfaction beyond a reasonable doubt, that either of the weapons wereinvolved or both, as long as you find that there was a deadly weapon involved." The jurythereafter returned a verdict of guilty on all counts charged in the [*2]indictment.
Defendant now contends that the court's instruction to the jury constructivelyamended the indictment, rendering it duplicitous. We reject that contention. It is wellestablished that, " '[w]here an offense may be committed by doing any one of severalthings, the indictment may, in a single count, group them together and charge thedefendant with having committed them all, and a conviction may be had on proof of thecommission of any one of the things, without proof of the commission of the others' "(People v Charles, 61 NY2d 321, 327-328 [1984]). Contrary to the position ofthe dissent, we conclude that the evidence at trial established that the multiple shots firedfrom two separate firearms "constitute[d] a single uninterrupted assault rather than aseries of distinct criminal acts . . . , and the assault 'occurred over a shorttime frame, without apparent abeyance, and was triggered by a single incident of anger' "(People v Snyder, 100AD3d 1367, 1367 [2012], lv denied 21 NY3d 1010 [2013], quoting People v Hines, 39 AD3d968, 969-970 [2007], lv denied 9 NY3d 876 [2007]; cf. People v Bauman, 12 NY3d152, 155-156 [2009]; People v Casado, 99 AD3d 1208, 1209 [2012], lvdenied 20 NY3d 985 [2012]; see generally People v Alonzo, 16 NY3d 267, 270 [2011])."The fact that more than one dangerous instrument allegedly was used by the defendant[], and more than one [shot] was [fired] causing the [victim] several injuries, does nottransform this single criminal incident into multiple assaults or acts of [recklessendangerment] which must be charged by separate counts" (People v Kaid, 43 AD3d1077, 1080 [2007]; cf. People v Negron, 229 AD2d 340, 340-341 [1996]).We respectfully disagree with the position of the dissent that there were separateimpulses with an abeyance between them. Rather, the evidence established that defendantassaulted the victim and his fiancÉe in an attempt to seek revenge for thefiancÉe's alleged assault on defendant's sister. There was one motive and oneimpulse: to seek revenge. We see no distinction between a situation in which anassaulting defendant takes the time to reload one weapon and one in which the assaultingdefendant takes the time to obtain a second weapon with the single impulse of continuingthe ongoing assault.
With respect to the count of reckless endangerment in the first degree, the conductencompassed by that count was the act of endangering the life of the victim'sfiancÉe, who was in the vicinity of the victim the entire time defendant wasshooting at the victim. "Where . . . a crime by its nature as defined in thePenal Law may be committed either by one act or by multiple acts and can becharacterized as a continuing offense over time, the indictment may charge thecontinuing offense in a single count" (People v First Meridian Planning Corp., 86NY2d 608, 615-616 [1995]). Under the circumstances of this case, the crime of recklessendangerment "involved a continuing offense" and could therefore encompass multipleacts in one count without being duplicitous (People v Hernandez, 235 AD2d 367,368 [1997], lv denied 89 NY2d 1012 [1997]). In our view, the fact that themultiple shots were fired from two separate firearms did not transform this continuingoffense into two separate offenses. We disagree with the dissent's assumption that thefiancÉe was "potentially out of harm's way" when she sought refuge in a vehicleduring the barrage of gunshots inasmuch as the vehicle was still in the vicinity of thegunshots. "[R]eckless endangerment is a conduct-specific . . . crime," andhere the conduct underlying that count of the indictment was the firing of multiplegunshots in the vicinity of the fiancÉe (People v Estella, 107 AD3d 1029, 1032 [2013], lvdenied 21 NY3d 1042 [2013]; cf. People v Dann, 17 AD3d 1152, 1153-1154 [2005],lv denied 5 NY3d 761 [2005]). We thus conclude that the indictment was notrendered duplicitous by the court's instruction that the jury could find defendant guilty ofthe assault and reckless endangerment charges if it found that defendant used eitherfirearm or both.
We reject the view of the dissent that " 'there were two distinct shooting incidents' "(quoting People v Boykins,85 AD3d 1554, 1555 [2011], lv denied 17 NY3d 814 [2011]). Although thepublished decision in Boykins does not address the particular facts of the crimes,"[w]e can and do take judicial notice of the record on appeal" in that case (People vHill, 30 AD2d 976, 976 [1968]; see People v Crawford, 55 AD3d 1335, 1337 [2008], lvdenied 11 NY3d 896 [2008]). In Boykins, the [*3]defendant was charged with one count of attemptedmurder, but the evidence established that there were two distinct shooting incidentsdirected at the victim. The first occurred when the defendant and the codefendant firstarrived at the victim's residence. At that point the victim was shot in the stomach area.The defendant and the codefendant left the residence, and another resident of the homelocked the door behind them. At some time thereafter, either the defendant or thecodefendant kicked open the door and shot the victim twice in the face. Here, contrary tothe factual scenario in Boykins, there was no cessation or suspension in thecriminal activity other than the time it took defendant to obtain another loaded firearm.
Inasmuch as we conclude that the counts of the indictment were not renderedduplicitous by the court's instructions, we reject defendant's contention that he wasdenied effective assistance of counsel based on defense counsel's failure to seekdismissal of the allegedly duplicitous counts of the indictment (see People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]; People v Harris, 97 AD3d1111, 1111-1112 [2012], lv denied 19 NY3d 1026 [2012]; see also People v Brown, 82AD3d 1698, 1701 [2011], lv denied 17 NY3d 792 [2011]).
Contrary to defendant's further contention, we conclude that the shell casings wereproperly admitted in evidence. " 'The testimony presented at the trial sufficientlyestablished the authenticity of that evidence through reasonable assurances of identityand unchanged condition' . . . , and any irregularities in the chain of custodywent to the weight of the evidence rather than its admissibility" (People v Washington, 39AD3d 1228, 1230 [2007], lv denied 9 NY3d 870 [2007]; see generallyPeople v Julian, 41 NY2d 340, 342-343 [1977]).
We conclude that the sentence is not unduly harsh or severe. Finally, we note that thecertificate of conviction erroneously states that defendant was convicted of attemptedmurder in the second degree under Penal Law § 125.25 (2), and it must thereforebe amended to reflect that he was convicted under Penal Law § 125.25 (1) (see generally People v Saxton,32 AD3d 1286, 1286 [2006]).
All concur except Sconiers, J., who dissents and votes to modify in accordance withthe following memorandum.
Sconiers, J. (dissenting). I respectfully dissent in part because I disagree with themajority that the assault and reckless endangerment counts in the indictment were notrendered duplicitous based on the evidence or by County Court's charge in response to ajury note. I would therefore modify the judgment by reversing the conviction of assaultand reckless endangerment and dismissing the second and fourth counts of theindictment with leave to re-present any appropriate charges under those counts to anothergrand jury (see generally Peoplev Filer, 97 AD3d 1095, 1096 [2012], lv denied 19 NY3d 1025[2012]). In view of my conclusion, I do not reach defendant's related contentionconcerning the denial of effective assistance of counsel.
The indictment alleged, inter alia, that defendant committed assault in the first degree(Penal Law § 120.10 [1]) and reckless endangerment in the first degree (§120.25) with "a .380 semi-automatic pistol and a .22 rifle," and the jury was instructedaccordingly. During deliberations, the jurors sent a note that asked, with respect to boththe assault and reckless endangerment counts, "must we believe both guns were involvedand fired by the defendant." The court, in discussing the note with counsel, stated that theindictment alleged assault with a deadly weapon and not deadly weapons. As a result, thecourt subsequently instructed the jury that they could find that "either of the weaponswere involved or both, as long as you find that there was a deadly weapon involved."
With respect to the assault count, this was not a case of a "single, uninterruptedcriminal act" (People vAlonzo, 16 NY3d 267, 270 [2011]); rather, defendant engaged in "two distinctshooting incidents that may constitute the crime of [assault]" with two separate weapons,the first of which [*4]was interrupted when he returned tohis vehicle to retrieve a rifle (People v Boykins, 85 AD3d 1554, 1555 [2011], lvdenied 17 NY3d 814 [2011]; see generally People v Casado, 99 AD3d 1208, 1209[2012], lv denied 20 NY3d 985 [2012]). It is the separate "impulses," not thetime interval between the acts, that is dispositive in this case (see People vOkafore, 72 NY2d 81, 87-88 [1988]). Here, defendant used the pistol during thecourse of a fist fight between the victim, defendant's passenger, and defendant, after thevictim began to get the upper hand. The victim's fiancÉe was pushing him backtoward their sports utility vehicle (SUV) when defendant fired the last shot from thepistol. Following that initial altercation, after any perceived threat posed by the victimhad seemingly subsided, and after defendant stated that he was not afraid to use thepistol, defendant returned to his vehicle, retrieved a rifle from the back seat, and beganfiring in an apparent attempt to end the victim's life (see Boykins, 85 AD3d at1555). Defendant acted on those separate impulses with an "abeyance" between them (People v Hines, 39 AD3d968, 970 [2007], lv denied 9 NY3d 876 [2007]). Given the evidence at trialand the court's instruction in response to the jury note about the two weapons, the assaultcount was rendered duplicitous. "In addition, because the trial evidence establishes twodistinct acts that may constitute [assault in the first degree], '[i]t is impossible to ascertain. . . whether different jurors convicted defendant based on different acts' "(Boykins, 85 AD3d at 1555).
Reckless endangerment can be a "continuing offense" (People v Hernandez,235 AD2d 367, 368 [1997], lv denied 89 NY2d 1012 [1997]) and, for recklessendangerment in the first degree, "the element of depravity can be alleged by establishingthat defendant engaged in a course of conduct over a period of time" (People v Bauman, 12 NY3d152, 155 [2009]). Nevertheless, the conduct that allegedly created a grave risk ofdeath must be specific enough to ensure a unanimous jury verdict (see id.; People v Estella, 107 AD3d1029, 1031-1032 [2013], lv denied 21 NY3d 1042 [2013]). Here, thetestimony was that the victim's fiancÉe was in front of the victim when defendantfired the pistol but was able to get into the SUV, and potentially out of harm's way, whendefendant retrieved and fired the rifle. There was one count and one victim, but two acts,with a seemingly greater risk of death involved with the use of the pistol. Given thecourt's response to the jury note, it is not possible to know whether the jurors,individually or collectively, based their verdict upon the use of the pistol, the rifle, orboth. Based on defendant's break to retrieve the rifle, the fiancÉe's coincidingchange of location, and the court's amendment of the indictment (see Bauman, 12NY3d at 155), and "because of the danger that [the] jury . . . vote[d] toconvict on a count without having reached a unanimous verdict" (People v FirstMeridian Planning Corp., 86 NY2d 608, 615 [1995]), the reckless endangermentcount was rendered duplicitous.
Finally, the court failed to mitigate the danger that defendant was convicted on a lessthan unanimous verdict by neglecting to instruct the jury that they all must agree on theact or acts by which defendant injured the victim with a deadly weapon and created agrave risk of death to the victim's fiancÉe (see generally People v Bradford, 61 AD3d 1419,1420-1421 [2009], affd 15 NY3d 329 [2010]; First Meridian PlanningCorp., 86 NY2d at 616). Present—Scudder, P.J., Fahey, Sconiers andValentino, JJ.