| People v Nunez |
| 2014 NY Slip Op 05900 [120 AD3d 714] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Raul Nunez, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered April 7, 2011, convicting him of attempted manslaughter in the firstdegree (two counts), aggravated assault upon a police officer, criminal possession of aweapon in the second degree, attempted assault in the first degree (two counts), assaulton a police officer, theft of services, and resisting arrest, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Gross, J.),of that branch of the defendant's omnibus motion which was to suppress his statements tolaw enforcement officials.
Ordered that the judgment is modified, on the law, by vacating the conviction ofassault on a police officer, as charged in count ten of the indictment, vacating thesentence imposed thereon, and remitting the matter to the Supreme Court, QueensCounty, for a new trial as to that count of the indictment; as so modified, the judgment isaffirmed.
The charges against the defendant arose from an incident in which he shot andseriously wounded two police officers in a subway station, and allegedly attempted toshoot a third officer.
Contrary to the defendant's contention, the Supreme Court did not err in denying hisrequest to charge assault in the second degree under Penal Law § 120.05 (4)as a lesser-included offense of the counts of attempted assault in the first degree andaggravated assault upon a police officer, with respect to the shooting of Police OfficerFarina. When viewed in the light most favorable to the defendant, there was noreasonable view of the evidence that the defendant acted recklessly, rather thanintentionally, in firing a gun at Officer Farina, particularly as the record showed that thedefendant grabbed a gun belonging to a police officer during a physical struggle withOfficer Farina and then fired the gun in close proximity to Officer Farina, striking him(see People v Gutt, 101AD3d 423, 424 [2012]; People v Funchess, 284 AD2d 478 [2001];People v Ellis, 230 AD2d 751 [1996]).
However, the Supreme Court should have submitted a justification charge to the jurywith respect to the crime of assault on a police officer under Penal Law§ 120.08, as charged in count ten of the indictment. As relevant here,"justification is comprised of both subjective and objective elements. The subjectiveelement is concerned with whether the defendant believed that the use of [*2]deadly force was necessary; while under the objectiveprong, the jury must consider whether a reasonable person in the defendant'scircumstances would have believed that deadly force was required" (People v Umali, 10 NY3d417, 425 [2008]). When a defense of justification is raised, "the People mustdemonstrate beyond a reasonable doubt that the defendant did not believe deadly forcewas necessary or that a reasonable person in the same situation would not have perceivedthat deadly force was necessary" (id.). A trial "court is obliged to give ajustification charge whenever the evidence, reasonably viewed in the light mostfavorable to the defendant, supports the charge" (People v Lauderdale, 295 AD2d539, 540 [2002]; see People v Padgett, 60 NY2d 142, 144 [1983]; People vTorres, 288 AD2d 406 [2001]).
Contrary to the determination of the Supreme Court, the defense of justification ispotentially applicable to the crime of assault on a police officer under Penal Law§ 120.08 (see People v Cain, 236 AD2d 788 [1997]; People vDare, 175 AD2d 586, 586-587 [1991]; see also People v Magliato, 68 NY2d24, 29 [1986]). Further, a reasonable view of the evidence in this case supported ajustification charge with respect to count ten of the indictment charging the defendantwith assault on a police officer under Penal Law § 120.08 (see People v Fermin, 36 AD3d934, 935-936 [2007]; seealso People v Molina, 101 AD3d 577 [2012]; People v Curry, 85 AD3d1209, 1211-1212 [2011]). Consequently, the defendant is entitled to a new trial as tocount ten of the indictment. However, contrary to the defendant's assertion, there was no"spillover" effect emanating from this error with respect to the remaining charges as,inter alia, the trial court delivered a justification charge with respect to the remainingcounts to which it was applicable.
The Supreme Court did not improvidently exercise its discretion in denying the jury'srequest for a readback of the defense summation remarks (see People v Smith, 4AD3d 378 [2004]; People v Dixon, 277 AD2d 65 [2000]).
The sentences imposed with respect to the convictions of attempted manslaughter inthe first degree (two counts), aggravated assault upon a police officer, criminalpossession of a weapon in the second degree, attempted assault in the first degree (twocounts), theft of services, and resisting arrest were not excessive (see People vSuitte, 90 AD2d 80 [1982]).
With respect to the first contention raised by the defendant in his pro se supplementalbrief, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt with respect to the crimes of attempted manslaughter inthe first degree (two counts) and aggravated assault upon a police officer was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). Further, under the circumstances of thiscase, the defendant was properly convicted of attempted manslaughter in the first degree.Where, as here, a defendant raises the affirmative defense of extreme emotionaldisturbance to mitigate a charge of attempted murder, he or she may be convicted ofattempted manslaughter in the first degree if the jury accepts that defense (seePenal Law §§ 110.00, 125.20 [2]; People v Rabideau, 82 AD3d1283, 1285-1286 [2011]; People v Ledesma, 300 AD2d 72 [2002];People v Motter, 235 AD2d 582, 584 [1997]; People v White, 125 AD2d932, 933 [1986]; see also People v Robinson, 143 AD2d 376, 377 [1988];People v Harris, 138 AD2d 626, 627 [1988]; People v Tabarez, 113AD2d 461, 462 [1985], affd 69 NY2d 663 [1986]).
The defendant failed to preserve for appellate review his contentions regarding thejury charge as to extreme emotional disturbance, and regarding the form of the verdictsheet (see CPL 470.05 [2]). In any event, these contentions are without merit(see Penal Law § 125.20 [2]; see also Penal Law§ 125.25 [1] [a]).
Contrary to the defendant's contention, the Supreme Court did not err in imposingconsecutive sentences with respect to counts two and five of the indictment, as the recordshowed that those counts were based on separate and discrete events (see People v McKnight, 16NY3d 43, 49-50 [2010]; People v Crawford, 112 AD3d 734 [2013]; see also People v Holmes, 92AD3d 957 [2012]).
The defendant failed to preserve for appellate review his contention regarding thetrial [*3]court's response to certain jury notes. Further,the alleged error did not affect the mode of trial proceedings; thus, preservation wasrequired (see People vWilliams, 21 NY3d 932, 934-935 [2013]). In any event, this contention iswithout merit (see People v Almodovar, 62 NY2d 126, 131-132 [1984]).
The hearing court did not err in denying that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials. The hearingrecord showed that notwithstanding his injuries, the defendant made a knowing,voluntary, and intelligent waiver of his Miranda rights (see Miranda vArizona, 384 US 436 [1966]; People v Legere, 81 AD3d 746, 748 [2011]; People vBraithwaite, 286 AD2d 507 [2001]; People v Pearce, 283 AD2d 1007[2001]).
The record, in totality, shows that the defendant was afforded the effective assistanceof counsel (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]). Mastro, J.P., Lott, Sgroi and LaSalle, JJ.,concur.