| People v Archie |
| 2014 NY Slip Op 04307 [118 AD3d 1292] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vNakeem Archie, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered December 17, 2010. The judgment convicted defendant, upon juryverdicts, of murder in the second degree, assault in the first degree and criminalpossession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, following twojury trials, of murder in the second degree (Penal Law § 125.25 [2]), assaultin the first degree (§ 120.10 [3]), and two counts of criminal possession of aweapon in the second degree (§ 265.03 [3]). The jury at the first trialconvicted defendant of one weapons offense and acquitted defendant of another weaponsoffense, but was unable to reach a verdict on the remaining counts. At the retrial, defensecounsel stipulated to the admission of evidence regarding the weapons offense for whichdefendant had been convicted, and the jury convicted defendant of depraved indifferencemurder and depraved indifference assault, along with the remaining weaponsoffense.
Defendant contends that the evidence at the first trial was legally insufficient toestablish that he committed depraved indifference murder and assault and thus that thesecond trial was barred by double jeopardy with respect to those two crimes (see People v Scerbo, 74 AD3d1730, 1731 [2010], lv denied 15 NY3d 757 [2010]). According to defendant,the shooting was "manifestly intentional" and thus not reckless, as is required for thedepraved indifference crimes. He further contends that, in any event, the evidence at thesecond trial, which is substantially similar to that admitted at the first trial, is likewise notsupported by legally sufficient evidence. We reject defendant's contentions. The evidenceat both trials, when viewed in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), establishes that on October 15, 2007, defendantwas "jumped" at school by a fellow student who lived in Syracuse in the Pioneer Homeshousing development, which is colloquially referred to as "the Bricks." Three days later,defendant borrowed his friend's .22 caliber semi-automatic pistol. According todefendant's friend, defendant was angry because "some guys from the Bricks" had"jumped" him. Later that night, defendant had someone drive him to Pioneer Homes.After exiting the vehicle, defendant [*2]walked across thestreet and entered the courtyard of the housing development, where he observed threepeople walking together. Another person was in the vicinity. Standing less than 20 feetaway from the group of people, defendant fired between three and six shots in theirdirection. One of the three people walking together was struck in the arm by a bullet andwas seriously injured, and another person in the group was shot in the neck and died. Thevictim who died had three bullet fragments in her neck, but it is unclear from the recordwhether she was struck by three separate bullets or one bullet that broke into pieces uponimpact. Defendant returned to the waiting vehicle and went home. Defendant later toldhis friend from whom he had obtained the firearm that he "aired out the PH," referring toPioneer Homes. Defendant also said that, while in the courtyard, he saw a group of"dudes" and started shooting. The .22 caliber handgun used in the shooting wasrecovered by the police from the home of defendant's friend, who testified againstdefendant at both trials in return for a promise of leniency on a drug charge in federalcourt. Laboratory tests subsequently established that defendant's DNA was on thefirearm. When questioned by the police following his arrest, defendant admitted that hepossessed the firearm on the night in question, but he denied shooting at anyone. At bothtrials, the People called a witness who testified that he was in the vehicle with defendantwhen he was driven to Pioneer Homes on the night of the shooting. In return for histestimony, that witness was allowed to plead guilty to a misdemeanor on a pendingfelony charge.
The relevant legal principles for evaluating the above trial evidence are well settled.Depraved indifference is a mental state " 'best understood as an utter disregardfor the value of human life—a willingness to act not because one intends harm,but because one simply doesn't care whether grievous harm results or not' " (People v Heidgen, 22 NY3d259, 274 [2013], quoting People v Feingold, 7 NY3d 288, 296 [2006])."Circumstantial evidence can be used to establish the necessary mens rea"(Heidgen, 22 NY3d at 275; see People v Green, 104 AD3d 126, 129 [2013]). Althoughshooting into a crowd of people is a " '[q]uintessential example[ ]' " ofdepraved indifference (People vRamos, 19 NY3d 133, 136 [2012]; see People v Suarez, 6 NY3d 202, 214 [2005]; People v Payne, 3 NY3d266, 272 [2004], rearg denied 3 NY3d 767 [2004]; People vCallender, 304 AD2d 426, 426 [2003], lv denied 100 NY2d 641 [2003]), themere presence of others does not transform an otherwise intentional shooting into adepraved indifference murder or assault (see generally People v Garrison, 39 AD3d 1138,1139-1140 [2007], lv denied 9 NY3d 844 [2007]). Rather, the point ofdistinction between a criminal act committed with intent and a criminal act committedwith depraved indifference is that the former is motivated by the "conscious objective" tocause death or serious physical injury, while the latter is "recklessly indifferent,depravedly so, to whether death [or serious physical injury] occurs" (People v Gonzalez, 1 NY3d464, 468 [2004]).
We conclude that this case is one of those "rare" cases where the defendant properlycould have been charged with both intentional and depraved indifference murder(Suarez, 6 NY3d at 215). Stated otherwise, and contrary to defendant'scontention, he is not "guilty of an intentional shooting or no other" (People vWall, 29 NY2d 863, 864 [1971]). The evidence summarized above, when viewed inthe light most favorable to the People, establishes a "valid line of reasoning andpermissible inferences which could lead a rational person" to conclude that defendant, byshooting indiscriminately at a group of people that he did not know, acted with depravedindifference to human life rather than with intent to kill (People v Bleakley, 69NY2d 490, 495 [1987]; seePeople v Campbell, 33 AD3d 716, 718-719 [2006], lv denied 8 NY3d879 [2007]; Callender, 304 AD2d at 426). In addition, viewing the evidence atthe second trial in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Although adifferent verdict with respect to the depraved indifference counts would not have beenunreasonable, it cannot be said that the jury failed to give the evidence the weight itshould be accorded (see generally id.; People v Lowe, 113 AD3d 1133, 1133-1134[2014]).
[*3] We reject defendant's furthercontention that he was deprived of effective assistance of counsel at the second trial,during which his defense counsel stipulated that, three days after the shooting at thePioneer Homes, defendant possessed a loaded .22 caliber semi-automatic pistol and firedit nine times in the vicinity of a gas station in Syracuse. Defendant had been convicted ofcriminal possession of a weapon in the second degree for that incident at the first trial.We agree with defendant that evidence that he had fired the weapon on another occasionwould have been inadmissible at the second trial absent defense counsel's stipulation, andthus that there was no legitimate strategy behind defense counsel's decision to enter intothe stipulation. Nevertheless, we deem defense counsel's performance not otherwisedeficient, and we conclude that the above single error was not so egregious as to deprivedefendant of his right to a fair trial (see People v Turner, 5 NY3d 476, 480 [2005]; People v Cosby, 82 AD3d63, 67 [2011], lv denied 16 NY3d 857 [2011]). Defendant does not takeissue with defense counsel's performance at the first trial, which resulted in a hung juryon three of the five counts and, viewing defense counsel's representation at the secondtrial in its entirety, we conclude that she provided defendant with meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Williams, 98 AD3d1234, 1235-1236 [2012], lv denied 21 NY3d 947 [2013]).
Finally, we perceive no basis to modify defendant's sentence as a matter of discretionin the interest of justice (see CPL 470.15 [6] [b]). Present—Centra, J.P.,Fahey, Peradotto, Lindley and Valentino, JJ.