| People v Gottsche |
| 2014 NY Slip Op 04313 [118 AD3d 1303] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMarcus J. Gottsche, Appellant. |
J. Michael Marion, Tonawanda, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered February 15, 2012. The judgment convicted defendant, upon a juryverdict, of murder in the second degree and criminal possession of marihuana in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, murder in the second degree (Penal Law § 125.25 [1]), defendantcontends that defense counsel and Supreme Court treated as determinative his personalopinion with respect to whether to submit lesser-included offenses to the jury and thusthat he was denied effective assistance of counsel within the meaning of People v Colville (20 NY3d20 [2012]). We reject that contention.
The Court of Appeals held in Colville (20 NY3d at 23) that "the decisionwhether to seek a jury charge on lesser-included offenses is a matter of strategy andtactics which ultimately rests with defense counsel." The defendant in Colville,like the defendant herein, was charged with murder in the second degree (id. at23). The defendant's attorney asked the court to submit the lesser-included offenses offirst- and second-degree manslaughter to the jury, and the court agreed (id.). Thedefendant, however, later decided that he did not want the jury to consider anylesser-included offenses (id. at 25). Defense counsel "repeatedly voiced hisprofessional judgment that it was in his client's best interests for the jury to be instructedon the[ ] lesser-included offenses" and, "despite the defense attorney's clearly statedviews and advice to the contrary," the judge "made plain that he would be guidedsolely by defendant's choice in the matter" (id. at 32 [emphasis added]). TheCourt concluded that the trial court erred because the decision with respect tolesser-included offenses "was for the attorney, not the accused, to make" (id.).According to the Court, "[b]y deferring to defendant, the judge denied him the expertjudgment of counsel to which the Sixth Amendment entitles him" (id.).
Here, unlike in Colville, there is nothing in the record to establish that thedecision to forgo the submission of lesser-included offenses was made solely indeference to defendant, that it was against the advice of defendant's counsel, or that itwas inconsistent with defense counsel's trial strategy. After the People rested, the courtasked defense counsel whether he intended to request any lesser-included offenses.Defense counsel indicated that he did, but that [*2]he"just need[ed] to confirm that with my client." During the charge conference, defensecounsel informed the court that, after discussing the issue with defendant over the lastseveral weeks, counsel "made [his] suggestions to [defendant] and [it was counsel's]understanding that we are not asking for the lesser charge of manslaughter in the seconddegree." Defense counsel indicated that there was nothing else he wished to say withrespect to the lesser-included offense issue. After the court denied defense counsel'srequest for a justification charge, the court again raised the issue of lesser-includedoffenses, noting that defendant's decision had been made without the benefit of thecourt's ruling on justification. Defense counsel advised the court that defendant "stilldoes not want me to ask for any lesser included offenses. I did speak to him after theCourt made its ruling last week Friday about it to see if it would change his mind. I spoketo him again this morning for a few moments and it's still my understanding that he doesnot wish that I ask for any lesser included offenses." Again, defense counsel declined tomake any further comment on the issue.
While it is clear from the record that defendant was opposed to the submission oflesser-included offenses to the jury, there is no indication in the record that defensecounsel's position differed from that of his client. Rather, the record is equally consistentwith the inference that, after discussing the issue at length, defense counsel agreed withor acceded to defendant's position (cf. People v Alvarez, 106 AD3d 568 [2013], lvdenied 21 NY3d 1013 [2013]). This case is therefore distinguishable fromColville, in which "[t]he record show[ed] that the defense attorney never deviatedfrom his position that 'going for broke' was tactically unwise . . . In short,the defense attorney never 'acceded' or 'acquiesc[ed]' todefendant's decision . . . except to the extent the judge impermissiblyleft him no alternative" (20 NY3d at 32 [emphasis added]). Here, by contrast, the recordsupports the conclusion that, "after consulting with and weighing the accused's viewsalong with other relevant considerations, [defense counsel] decide[d] to forgosubmission of lesser-included offenses to the jury" (id.). We thus conclude that,on the record before us, it cannot be said that defendant was "denied . . . theexpert judgment of counsel to which the Sixth Amendment entitles him"(id.).
Contrary to the further contention of defendant, we conclude that the evidence islegally sufficient to establish his intent to kill, and that the verdict is not against theweight of the evidence with respect to that element of the crime. It is well established that"[i]ntent to kill may be inferred from defendant's conduct as well as the circumstancessurrounding the crime" (Peoplev Price, 35 AD3d 1230, 1231 [2006], lv denied 8 NY3d 926 [2007]; see People v Lopez, 96 AD3d1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Badger, 90 AD3d1531, 1532 [2011], lv denied 18 NY3d 991 [2012]). Viewing the evidencein the light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that the evidence is legally sufficient to establish that defendantintended to kill the victim (seePeople v Thomas, 96 AD3d 1670, 1674 [2012]; People v Lucas, 94 AD3d1441, 1441 [2012], lv denied 19 NY3d 964 [2012]). The People presentedevidence that, shortly before the shooting, defendant and the victim were involved in aheated argument and physical altercation, which escalated into a standoff with knives(see Lucas, 94 AD3d at 1441; People v Evans, 242 AD2d 948, 949[1997], lv denied 91 NY2d 834 [1997]; see also Lopez, 96 AD3d at1622). Defendant then went upstairs and grabbed a loaded .22-caliber semi-automaticrifle from the side of his bed. The record reflects that defendant had four firearms in hishouse. In addition to the rifle at issue, defendant had a .308 caliber French military rifle,which was not readily operable, and two BB guns, one of which was in the kitchenwhere the altercation occurred. Defendant, however, chose the most lethal optionavailable to him, i.e., the loaded .22-caliber rifle from his bedroom. With respect to theshooting itself, a witness testified that, after firing a single shot into the ground from thestaircase, defendant turned and fired a second shot "towards the front door," out of whichthe victim was fleeing. Indeed, in his statement to the police, defendant stated that heremembered "shooting once at [the victim] as she went out the door." We thereforeconclude that "there is [a] valid line of reasoning and permissible inferences which [*3]could lead a rational person to the conclusion reached bythe jury on the basis of the evidence at trial," i.e., that defendant intended to kill thevictim (People v Bleakley, 69 NY2d 490, 495 [1987]; see Lucas, 94AD3d at 1441; Evans, 242 AD2d at 949).
We further conclude that, although a different verdict would not have beenunreasonable, the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). It is well established that " '[r]esolution of issuesof credibility, as well as the weight to be accorded to the evidence presented, areprimarily questions to be determined by the jury' " (Lopez, 96 AD3d at1622), and we cannot conclude that the jury failed to give the evidence the weight itshould be accorded (see Peoplev Johnson, 38 AD3d 1327, 1328 [2007], lv denied 9 NY3d 866[2007]; People v Phong T. Le, 277 AD2d 1036, 1036 [2000], lv denied96 NY2d 762 [2001]).
Defendant further contends that he was denied a fair trial by prosecutorialmisconduct on summation. We note that defendant failed to object to most of the allegedinstances of misconduct, and thus his challenges to those remarks are unpreserved for ourreview (see CPL 470.05 [2]; People v Smith, 32 AD3d 1291, 1292 [2006], lvdenied 8 NY3d 849 [2007]). In any event, we conclude that the majority of theprosecutor's comments "were either a fair response to defense counsel's summation orfair comment on the evidence" (People v Goupil, 104 AD3d 1215, 1216 [2013], lvdenied 21 NY3d 943 [2013] [internal quotation marks omitted]; see People v Wilson, 104AD3d 1231, 1233 [2013], lv denied 21 NY3d 1011 [2013],reconsideration denied 21 NY3d 1078 [2013]). While the prosecutor's repeatedcomments to the effect that defendant "aimed" the rifle at the fleeing victim may havebeen an overstatement of the facts, we nonetheless conclude that those comments"remained within the broad bounds of rhetorical comment permissible duringsummations" (People vWellborn, 82 AD3d 1657, 1658 [2011], lv denied 17 NY3d 803 [2011][internal quotation marks omitted]). We further conclude that any improper remarks were"not so pervasive or egregious as to deprive defendant of a fair trial" (People vJohnson, 303 AD2d 967, 968 [2003], lv denied 100 NY2d 583 [2003][internal quotation marks omitted]; see People v Willis, 79 AD3d 1739, 1741 [2010], lvdenied 16 NY3d 864 [2011]), and thus that defense counsel's failure to object to theallegedly improper comments did not constitute ineffective assistance of counsel (see People v Koonce, 111AD3d 1277, 1278-1279 [2013]).
Finally, we conclude that the sentence is not unduly harsh or severe under thecircumstances of this case. Present—Smith, J.P., Peradotto, Carni, Sconiers andValentino, JJ.