| People v Lee |
| 2014 NY Slip Op 02507 [116 AD3d 493] |
| April 10, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Christopher Lee, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel),for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), renderedSeptember 9, 2009, convicting defendant, after a jury trial, of criminal possession of aweapon in the second degree (two counts), assault in the second degree, and attemptedcoercion in the first degree, and sentencing him, as a second violent felony offender, toan aggregate term of 13 years, unanimously modified, on the law, to the extent ofvacating the conviction of assault in the second degree and remanding for furtherproceedings thereon, and otherwise affirmed.
This appeal arises out of the October 17, 2008 shooting of a 19-year-old victim inwhich defendant was the shooter and codefendant Raynell Burgess, acting in concertwith defendant, orchestrated the shooting. The victim was Burgess's codefendant in apending drug case.
On the night of the shooting, Burgess watched from a distance of approximately 10to 15 feet as defendant, who was armed with a "big" black "automatic" gun, confrontedthe victim in a play area of the Lincoln Houses in an attempt to intimidate him intoaccepting responsibility in the drug case. When the victim asked Burgess if he reallywanted defendant to shoot him, Burgess walked over and told defendant to end thevictim's life or he would do it himself. Complaining that defendant was taking too long,Burgess tried to grab the gun from defendant, but defendant assured him, "I got it."
Burgess walked away, as the victim tried, unsuccessfully, to further engage him.When the victim turned around, defendant was pointing the gun within a few inches ofthe victim's face, with his finger on the trigger. The victim grabbed defendant's wrist andbriefly struggled with defendant. Defendant broke free, with the gun still in his hand, butthe victim was "not sure" if defendant still had his finger on the trigger. In the aftermathof the struggle, but while defendant was still holding the gun, it discharged, and thevictim was shot in the shoulder. Five minutes had elapsed from the time defendant firstpointed the gun at the victim.
The victim fled, but re-encountered Burgess, who, using a different gun, aimed it atthe victim's head, and pulled the trigger. The gun jammed. When the victim escaped fromBurgess, he went up to a passerby who called 911.
The victim initially was uncooperative with the police, indicating that he did notknow [*2]who shot him and gave affirmativelymisleading information. As the victim would later explain at trial, he was concerned forhis family's safety and did not want to be labeled a "snitch."
However, after interviewing various witnesses, the assigned detective developed atheory of the shooting and went to speak with the victim at his home a week after theshooting. The victim remained reluctant, but the next day finally identified defendant asthe shooter and provided other details of the crime.
Among other charges, defendant and Burgess were indicted for attempted murder inthe second degree (Penal Law §§ 110.00, 125.25 [1]), attempted assault inthe first degree (Penal Law §§ 110.00, 120.10 [1]), and assault in the seconddegree (Penal Law § 120.05 [2]). On the second day of deliberations, the jurorssent a note which read, "We the jury request a clarification regarding the law; if anindividual intends to assault someone, but the gun discharges accidentally (before heintended to shoot), is that individual guilty of assault? If so, in what degree?" Before thecourt could respond to the initial inquiry, the jury sent out two more notes, one asking forevidence and one asking the court for the "definition" of the two assault charges, theattempted coercion charge, and "the parameters surrounding those laws."
When discussing how to respond to the notes, defense counsel urged the court torespond to the notes together because the jury was clearly "struggling with the idea ofintent in the assault charge." The court indicated that it would respond to the notes inseriatim, and specifically asked counsel for input on how to respond to the jury'shypothetical question. Counsel argued that the answer should be no, particularly in lightof the fact that defendant was charged with acting intentionally, not recklessly, as isallowed under other subdivisions of the same statute.
Over objection, the court ultimately responded as follows, "I have three notes fromyou which I have marked as Court Exhibits XII, XIII and [X]IV.
"The first was a clarification regarding the law.
" 'If an individual intends to assault someone but the gun discharges accidentallybefore he intended to shoot, is the individual guilty of assault.'
"The answer to that is yes.
"Your question 'If so, in what degree' goes back to the elements which I'm going tocharge you on. You have to make that determination."
The court went on to restate the elements of the two assault charges and theattempted coercion charge. The jury acquitted defendant of the counts of attemptedmurder in the second degree and attempted assault in the first degree and convicted himof all other charges, including assault in the second degree.
We agree with defendant that the court's response erroneously allowed the jury tofind defendant guilty of intentional assault without finding that the intent element of thatcrime existed beyond a reasonable doubt. "It is a well-established rule of law that theintent to commit a crime must be present at the time the criminal act takes place"(People v Rivera, 184 AD2d 288, 291 [1st Dept 1992], appeal dismissed81 NY2d 758 [1992]). The intent element is not satisfied if, as in the jury'shypothetical, the individual does not intend to pull the trigger at the [*3]moment the gun discharges. While those facts might havesupported liability for a crime requiring a lesser mens rea than acting intentionally,defendant here was not charged with such a crime. Because the court's response to thejury's note incorrectly signaled that an accidental firing of the gun could support aconviction for intentional assault, the conviction on that count must be reversed.
We affirm the remainder of the conviction, as we find that defendant has not shownthat he was sufficiently prejudiced by the remaining alleged Rosario andBrady violations to warrant reversal.
Defendant argues that the trial court should have given an adverse inference chargedue to the prosecution's failure to produce the handwritten notes made by the policeofficer who interviewed the victim at the hospital after the shooting. While the typedreport based on these notes indicated that the victim described his assailant as having a"clear complexion"—a description that the People concede does not matchdefendant—it was not admitted in evidence because the officer did not rememberthe victim making the remark and had not checked the typed report against his originalnotes. Although this officer was called as a defense witness, defendant correctly arguesthat the missing scratch copy constituted Rosario material as to the victim, whotestified for the People, as well as Brady material.
However, defendant is not entitled to reversal based on the trial court's failure to givean adverse inference charge in this instance. Addressing this question under similarcircumstances, the Court of Appeals recently concluded that a trial judge did not abusehis discretion in declining to give an adverse inference charge regarding the loss of ahandwritten complaint report (People v Martinez, 22 NY3d 551 [2014]). The Courtclarified the rule: "nonwillful, negligent loss or destruction of Rosario materialdoes not mandate a sanction unless the defendant establishes prejudice" (id. at567). In that case, as here, the handwritten report that could not be found had served asthe basis for a typewritten report that was made available to the defendants. Thedefendants there relied on a "series of improbable events to create the prospect ofprejudice" (id. at 567-568). The Court cautioned that if a prejudice finding couldbe based on "conjecture like this, built on a foundation of fortuity," loss of Rosariomaterial would be per se prejudicial, which flies in the face of "the legislature'santipathy toward per se rules leading to the reversal of convictions for Rosarioviolations" (id. at 568).
Here, defendant's claim of prejudice similarly lacks merit. Defendant called as awitness the officer who interviewed the victim in order to impeach the victim's testimonythat he did not say that his assailant had a clear complexion. The officer stated that he didnot recall what the victim said and that the typewritten report did not refresh his memory.Because the original report could not be found, defendant now argues, he was leftwithout a method to impeach the victim's testimony, and the court's refusal to grant anadverse inference charge left him without any recourse for this loss.
Defendant has not shown, however, that an adverse inference charge or the ability toimpeach the victim on this issue would have had any impact on the verdict. In defensecounsel's opening statement, he told the jury that the victim changed his story a numberof times before coming to the one they would hear, after talking to his lawyers. He toldthe jury they would learn that the victim is a pothead, a crack dealer, and a deal makerwith every reason to lie to "get a pass" on a number of previous arrests. Counsel told thejury that immediately after the incident, the victim told police that he did not know whoshot him. He argued that the victim told the truth then, when he thought he might diefrom the wound, and later lied when it was convenient. [*4]Counsel walked the jury through each change in thevictim's story over time. During the defense's cross-examination of the victim, the holesin his multiple stories were repeatedly brought to light and he admitted a number of timesthat he lied to the police on several occasions about various details related to theshooting. Defense counsel argued extensively during summation that the victim liedoften and had a clear motive to lie in this case.
Defense counsel had ample opportunity to show the jury that the victim's testimonyas to the identity of his shooter was fabricated, and took advantage of this opportunitythrough repeated attacks on his credibility. On this record, there is no reasonablepossibility that extrinsic proof that the victim at one point said his attacker had a clearcomplexion would have changed the jury's determination, notwithstanding the victim'sdenial of having given that description when asked that question duringcross-examination. Furthermore, to the extent this information may have aided thedefense case, it bears noting that once the officer could not recall the victim's havinggiven the prior inconsistent description, defense counsel did not attempt to enter thetyped complaint report into evidence through the typist, whose name was on the reportand who obviously had seen the handwritten version. Accordingly, we conclude that thetrial court did not abuse its discretion in declining to give an adverse inference chargeregarding the loss of the report because a sanction is not mandatory for nonwillful,negligent loss or destruction of Rosario material where prejudice is not shown(see Martinez at 567). For the same reasons, the violation of Brady doesnot warrant reversal either, as there is no reasonable possibility that the missinghandwritten copy of the report contributed to the verdict (see People v Vilardi, 76NY2d 67 [1990]).
Nor is reversal required by the court's failure to direct the People to disclose the"DD5" Complaint Follow Up Informational Reports made by Detective Keane inconnection with his investigation, although we note that these reports did constituteRosario material that should have been disclosed. It has long been settled that thenotes and reports of a testifying police officer witness qualify as Rosario materialif they relate to the same subject matter as the officer's hearing or trial testimony andmust be produced to the defense for cross-examination (see People v Malinsky,15 NY2d 86, 90-91 [1965]; People v Quinones, 139 AD2d 404, 406 [1st Dept1988], affd 73 NY2d 988 [1989]). Detective Keane's DD5 reports were, in hiswords, "what I would do to outline the steps taken in my investigation . . .basically it is a synopsis of my investigation." Detective Keane testified at trial about thatinvestigation. Therefore, all DD5 reports created by him in connection with theinvestigation should have been produced to defense counsel, with all redactionsnecessary to safeguard the identity of any confidential informants. However, reversal isnot required by this Rosario violation either, because after considering thesubstance of the particular undisclosed material and the weight of the remaining evidenceagainst defendant, we do not find a reasonable possibility that defendant would not havebeen convicted if the DD5 reports had been disclosed.[*5]
We perceive no basis for reducing the sentence.
We have considered defendant's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Acosta, Saxe, Richter and Feinman, JJ.