| People v Hull |
| 2015 NY Slip Op 01488 [125 AD3d 1099] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vGlenford C. Hull, Appellant. |
Jonathan I. Edelstein, New York City, for appellant.
Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedJanuary 26, 2011 in Delaware County, upon a verdict convicting defendant of the crimeof manslaughter in the first degree.
Following a jury trial in 2006, defendant was convicted of murder in the seconddegree after shooting his downstairs neighbor (hereinafter the victim). On appeal, wevacated the conviction and ordered a new trial, finding that defendant did not receive theeffective assistance of counsel (71 AD3d 1336 [2010]). A second trial was conductedand, in November 2010, a jury acquitted defendant of murder in the second degree butconvicted him on a lesser included charge of manslaughter in the first degree. SupremeCourt denied defendant's subsequent motion to set aside the verdict and sentenced him toa prison term of 23 years, plus five years of postrelease supervision. Defendant nowappeals.
We affirm. Defendant first contends that the trial evidence does not support a findingthat he intended to seriously injure the victim, and that Supreme Court accordingly erredin charging the jury with the lesser included offense of manslaughter in the first degree.There is no dispute that manslaughter in the first degree is a lesser included offense ofintentional murder (see CPL 1.20 [37]). As a result, the question is whether therewas any reasonable view of the evidence to support a finding that defendant intended tocause serious physical injury to the victim rather than to kill him (see CPL 300.50[1]; People v Martin, 59 NY2d 704, 705 [1983]; People v Glover, 57NY2d 61, 63 [1982]). We are, of course, mindful that the issue of whether defendantintended to kill or seriously injure the victim is one "for the jury, except in [the] most[*2]unusual and exceptional circumstances" (People vJames, 127 AD2d 485, 488 [1987]; see People v Moran, 246 NY 100, 103[1927]; People v Owens, 251 AD2d 898, 899 [1998], lv denied 92 NY2d951 [1998]).
Here, defendant and the victim were neighbors and, although they had initially gottenalong well, they had developed an antipathy for one another. Shortly before the shooting,the victim had pounded on the door of defendant's apartment and shouted threats as aresult of a noise dispute. Defendant yelled through the door that the victim was "notgoing to like what" happened if he emerged from the apartment, and defendant retrieveda loaded handgun from his bedroom. He emerged after silence prevailed, ostensibly toconfirm that the victim had left, although the victim's fiancee testified that she hearddefendant call out, "Be a man, say it to my face." Regardless of what defendant said, thevictim returned in a rage and ascended the staircase toward defendant. Defendant did notwithdraw into the apartment but, as the victim reached out for him at the top of the stairs,defendant raised his arms and pointed the gun toward the victim. Defendant's daughterwitnessed the incident and testified that the handgun went off after defendant and thevictim began grappling for it. Defendant himself denied that any struggle for the handgunoccurred, but admitted that he raised his arms as the victim approached and that thehandgun went off after the victim made contact with it. A reasonable view of thisevidence is that an armed defendant emerged from his apartment with the intention ofconfronting his longtime nemesis and causing him harm.
The evidence could reasonably support the further finding that defendant intended toseriously injure and not kill the victim. Defendant, had he wished to kill the victim, couldhave easily shot the victim as the victim screamed and pounded on defendant's apartmentdoor or when the victim was ascending the stairs toward defendant. The victim wasinstead shot once during what the trial evidence suggests was a struggle for the gun(compare People v Butler, 84 NY2d 627, 634 [1994]; People v Moreno, 16 AD3d438, 438 [2005], lv denied 5 NY3d 766 [2005]). It is also worthy of note thatdefendant, after shooting the victim, performed first aid on him and summoned theauthorities (see People v Steinberg, 79 NY2d 673, 683 [1992]). Under thesecircumstances, Supreme Court properly submitted manslaughter in the first degree as alesser included offense of murder in the second degree (see People v Ford, 66NY2d 428, 440-441 [1985]; People v Oliveri, 29 AD3d 330, 330-331 [2006], lvsdenied 7 NY3d 760, 792 [2006]; People v Straker, 301 AD2d 667, 668[2003], lv denied 100 NY2d 587 [2003]).
Defendant additionally asserts that, because the jury could not find that he acted withan intent to seriously injure the victim, the verdict was not supported by legally sufficientevidence and was against the weight of the evidence. Viewing the evidence detailedabove in a light most favorable to the People, we find that a valid line of reasoningpermits the finding that defendant intended to seriously injure the victim and caused hisdeath (see People v Browne, 307 AD2d 645, 646 [2003], lv denied 1NY3d 539 [2003]; People v Owens, 251 AD2d at 899-900). The verdict was alsonot against the weight of the evidence, inasmuch as the jury was free to, and plainly did,infer from defendant's conduct that he harbored the requisite intent (see People v Goley, 113 AD3d1083, 1083 [2014]).
Defendant's remaining contentions regarding the conduct of the trial may be brieflydisposed of. The People called defendant's daughter to the stand, and she testified thatdefendant and the victim were struggling for the gun when it went off. Inasmuch as thatversion of events conflicted with her testimony at the first trial and damaged the People'sefforts to prove that defendant intended to kill the victim, Supreme Court properlypermitted the People to use her prior testimony for impeachment purposes (seeCPL 60.35 [1]; People vDavis, 45 AD3d 1039, [*3]1042 [2007], lvdenied 10 NY3d 763 [2008]). Supreme Court also acted properly in refusing to givea circumstantial evidence charge to the jury "since there was both direct andcircumstantial evidence of defendant's guilt, notwithstanding that defendant's intent wasa matter to be inferred from the evidence" (People v Hardy, 115 AD3d 511, 512 [2014], lvgranted 23 NY3d 1037 [2014]; see People v Daddona, 81 NY2d 990,992-993 [1993]). Supreme Court further conducted a thorough inquiry into alleged jurormisconduct and, given that defendant declined Supreme Court's offer to conduct furtherinquiry, we perceive no reason to address the issue (see CPL 270.35 [1]; People v Miller, 118 AD3d1127, 1129-1130 [2014], lv denied 24 NY3d 1086 [2014]).
Lastly, we are unpersuaded that the sentence imposed was harsh and excessive. Therecord discloses that Supreme Court took into account defendant's age, health andrelatively uneventful criminal history. Supreme Court placed more emphasis on thedevastating effect that the offense had on the victim's family, the violent nature of theoffense and the fact that it could have easily been avoided had defendant elected not toconfront the victim with a loaded handgun. We cannot say that Supreme Court abused itsdiscretion in doing so, and perceive no extraordinary circumstances that would warrant areduction of the sentence in the interest of justice (see People v Vanderhorst, 117 AD3d 1197, 1201-1202[2014], lv denied 24 NY3d 1089 [2014]; People v Hartman, 86 AD3d 711, 713 [2011], lvdenied 18 NY3d 859 [2011]).
McCarthy, J.P. and Garry, J., concur.
Lynch, J. (dissenting). I respectfully dissent because, in my view, there is not areasonable view of the evidence to sustain a finding that defendant intended to causeserious physical injury to the victim rather than to kill him (see CPL 300.50 [1];People v Martin, 59 NY2d 704, 705 [1983]; People v Glover, 57 NY2d61, 63 [1982]). "[T]he element of intent . . . may be inferred from adefendant's conduct and the surrounding circumstances, as well as from the act itself" (People v Callicut, 101 AD3d1256, 1258 [2012], lv denied 20 NY3d 1096 [2013] [internal quotationmarks and citations omitted]; see People v Kenyon, 108 AD3d 933, 937-938 [2013],lv denied 21 NY3d 1075 [2013]). While defendant maintains that the shootingwas accidental and he never intended to shoot the victim, he asserts that it is not possibleto intentionally fire a weapon into a person's forehead from point blank range with onlythe intent to seriously injure but not kill. Here, in addition to the deterioratingrelationship between the victim and defendant and the escalating verbal exchangepreceding the event, the evidence shows that, during the brief encounter between thevictim and defendant at the top of the stairway, the victim was shot in the forehead froma range of only a few inches. As such, I perceive no reasonable view of the evidence tosupport a finding that defendant intended only to cause serious physical injury (see e.g. People v Hendrie, 24AD3d 871, 873-874 [2005], lv denied 6 NY3d 776 [2006]; People v Moreno, 16 AD3d438, 438 [2005], lv denied 5 NY3d 766 [2005]; People v Maldonado, 5 AD3d505, 506 [2004], lv denied 3 NY3d 643 [2004]; People v Kelly, 221AD2d 661, 662 [1995], lv denied 87 NY2d 974 [1996], cert denied 517US 1200 [1996]; People v DeLucia, 302 AD2d 280, 280 [2003], lvdenied 100 NY2d 561 [2003]). It follows that Supreme Court erred by including acharge of manslaughter in the first degree as a lesser included offense. Since defendantwas acquitted of the only charge in the indictment, the indictment should be dismissed,without prejudice to the People to re-present any appropriate charges to another grandjury (see CPL 470.55 [1]; People v Munck, 92 AD3d 63, 75 [2011]; People v McAdams, 22 AD3d885, 886 [2005]).
Ordered that the judgment is affirmed.