| People v Casseus |
| 2014 NY Slip Op 05997 [120 AD3d 828] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Drew Casseus, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), forappellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Anne Grady, MichaelShollar, and Morrie I. Kleinbart of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered February 27, 2012, convicting him of murder in the seconddegree, attempted murder in the second degree, assault in the second degree, and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's convictions arose from an incident in which his friend, JonathanVazquez, and the complainant, Thomas Re, became involved in a fistfight. During thefight, when it became clear that Vazquez was losing the contest, the defendant firedseveral gunshots in the direction of the combatants. One of the bullets struck Re in theleg, while another killed Vazquez. The defendant ultimately was convicted, inter alia, ofattempted murder in the second degree based on his shooting at Re, and murder in thesecond degree, under a theory of transferred intent, for the killing of Vazquez.
The defendant's contention that the evidence was legally insufficient to support hisconvictions of murder in the second degree and attempted murder in the second degree isunpreserved for appellate review (see CPL 470.05; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of these crimes beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt as to these convictionswas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the People's contention, the defendant's assertion that the trial court [*2]should have granted his request for a justification charge ispreserved for appellate review. However, the trial court properly declined to give ajustification charge since, viewing the record in the light most favorable to the defendant,there was no reasonable view of the evidence to support such an instruction (seePenal Law § 35.15 [2] [a]; People v Reynoso, 73 NY2d 816,818 [1988]; People v Watts, 57 NY2d 299, 301-302 [1982]; People v Cotsifas, 100 AD3d1015 [2012]; People vSmall, 80 AD3d 786, 786-787 [2011]; People v Dickerson, 67 AD3d 700, 700-701 [2009]; People v Ryan, 55 AD3d960, 963 [2008]; People vOjar, 38 AD3d 684, 685 [2007]).
The defendant's contention that he was deprived of the effective assistance ofcounsel because his trial attorney failed to request submission of manslaughter in the firstdegree as a lesser included offense of intentional murder is unpersuasive. Rather,counsel's decision reflected a legitimate trial strategy of a reasonably competent attorney(see People v Evans, 16NY3d 571, 575 [2011]; People v Satterfield, 66 NY2d 796, 799 [1985]),since it was consistent with the defendant's statements to the police that he merely firedhis weapon for the purpose of breaking up the fight, and not with the intent to kill orinjure anyone. By declining to request the lesser included offense of manslaughter in thefirst degree and seeking only the submission of manslaughter in the second degree, trialcounsel logically elected to remove from the jury's consideration the possibility of a"compromise" guilty verdict on the former offense. Hence, if convinced of thedefendant's culpability for the homicide but not that he possessed the mens rea formurder in the second degree, the jurors could only have found that he acted recklessly, asthe defendant's own statements suggested. The fact that this reasonable strategy provedunsuccessful does not equate with ineffective assistance of counsel, and the defendant'sassertions to the contrary " 'confus[e] true ineffectiveness with mere losingtactics and accord[ ] undue significance to retrospective analysis' " (People v McGee, 20 NY3d513, 521 [2013], quoting People v Benevento, 91 NY2d 708, 712 [1998]). Inthis regard, we do not share our dissenting colleague's view that had manslaughter in thefirst degree been charged, the outcome of the trial may have been more favorable to thedefendant. The jury's separate conviction of the defendant for the attempted intentionalmurder of Re reflected its finding that the defendant acted with the specific intent to killwhen shooting at Re. There is no reason to believe that the jurors would have found thathe contemporaneously fired the errant shot that killed Vazquez with a less culpable mensrea of intent to seriously injure Re so as to support a conviction of manslaughter in thefirst degree. Thus, under the circumstances, and upon a review of the entire record, weconclude that the defendant received meaningful representation (see People vBaldi, 54 NY2d 137 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Dickerson, and Lott JJ., concur.
Hinds-Radix, J., dissents and votes to reverse the judgment appealed from, on thelaw and as a matter of discretion in the interest of justice, and to order a new trial, withthe following memorandum: On the evening of December 28, 2010, the defendant andhis friend Jonathan Vazquez, along with some other friends, were standing in front of acorner store in Staten Island. As Thomas Re exited the store, Vazquez challenged him toa fight. Re testified at trial that he took his shirt off to show Vazquez that he wasunarmed and was going to fight using his hands. Re and Vazquez moved to the side toavoid surveillance cameras, and Re put Vazquez in a "headlock." Re testified thatVazquez said he was finished, but after Re let him go, Vazquez "sucker punched" him inthe lip. Then Re heard a gunshot, which went "in the air," and he saw that the defendantwas holding a gun.
One of Re's companions similarly testified at trial that the defendant's first shot went"in the air." The companion further testified that the defendant fired four or fiveadditional shots, but the defendant "wasn't aiming it. It was like he had a hammer in hishand." Re's sister's trial testimony described the defendant as flinging his arm as he firedin the direction of the fight.
One shot entered Re's inner thigh, just above the knee cap, while another shot hitVazquez. Re and his companions fled the scene to their car. As they fled, Re's sisterturned and said [*3]to the defendant, "Oh, my god, youshot your mans [sic]."
It is undisputed that the gun used by the defendant was previously stored under theback porch of Vazquez's family's residence. Upon his arrest, the defendant told the policethat, after Vazquez and Re decided to fight each other, Vazquez took the gun out of hiscoat pocket and gave it to the defendant, with instructions that, "if shit gets crazy, burnthat nigger." When Re had Vazquez pinned on the ground, Vazquez looked at thedefendant with, what the defendant interpreted was, a "what-the-hell-are-you-doingface." The defendant claimed that he fired one shot in the air to break up the fight. Re didnot release his chokehold of Vazquez, so the defendant fired another shot towards Re.The defendant claimed that he heard two return shots. The defendant fired one more shottowards Vazquez, and noticed that Vazquez was sprawled on the ground. Vazquez diedshortly thereafter of a single gunshot wound to the left side of the head.
According to one of Vazquez's brothers, shortly after the crime, the defendantreturned to Vazquez's family's residence and told the brother that it was "crazy out there,"and "he may have shot my brother in the leg."
The defendant's conduct, as described by the eyewitnesses, and his statements topolice, strongly indicated that he may not have intended to kill anyone, but, rather, to theextent he was aiming the gun at all, he fired in the air or at the legs of the participants tostop the fight. He was charged in the indictment, inter alia, with intentional murder basedupon a transferred intent to kill, and manslaughter in the first degree based upon atransferred intent to inflict serious physical injury.
During the charge conference, when discussing charging the jury with lesserincluded offenses of intentional murder, defense counsel requested a charge ofmanslaughter in the first degree based upon an affirmative defense of extreme emotionaldisturbance. When making this request, defense counsel stated, in effect, that extremeemotional disturbance was the only basis upon which he was requesting a charge ofmanslaughter in the first degree. The trial court rejected this request, noting that notestimony with respect to extreme emotional disturbance was elicited at the trial. Defensecounsel did not request the manslaughter in the first degree charge for the count of theindictment that was based upon a transferred intent to inflict serious physical injury.However, a reasonable view of the evidence supported this charge (see People vSanchez, 226 AD2d 562, 563-564 [1996]; People v Cotton, 191 AD2d 577[1993]). In fact, the trial court offered to instruct the jury with respect to manslaughter inthe first degree based upon an intent to inflict serious physical injury, and defensecounsel replied by asking for a moment to think about it. After a short pause, heresponded, "Depending on how you ruled on the—I would ask not to have thatcharged." The trial court asked for clarification, and defense counsel replied "I will ask tohave it not charged."
Defense counsel's failure to request or agree to an instruction with respect tomanslaughter in the first degree based upon an intent to cause serious physical injury wasnot supported by any viable trial strategy and was a prejudicial error which may haveaffected the outcome. Indeed, during deliberations, the jury asked for additionalinstructions with respect to "murder in the second degree with intent to cause death,manslaughter in the second degree and attempted murder in the second degree." Afterabout two days of deliberations, the jury reached the verdict under review.
In view of the foregoing, it is apparent from the record that defense counsel'sperformance in this regard constituted ineffective assistance of counsel warranting a newtrial (see People v Fisher, 18NY3d 964, 967 [2012]).