| People v Hamilton |
| 2015 NY Slip Op 02804 [127 AD3d 1243] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1](April 2, 2015)
| The People of the State of New York, Respondent, vJeremiah Hamilton, Also Known as Kellan Brown, Also Known as Havoc,Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter Willis of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered October 24, 2012, upon a verdict convicting defendant of thecrimes of murder in the second degree, attempted murder in the second degree, criminalpossession of a weapon in the second degree (two counts) and reckless endangerment inthe first degree.
In September 2008, the victim was shot and killed in the City of Schenectady,Schenectady County while standing close to an individual with whom defendant hadquarreled earlier that day. Defendant was indicted on charges of murder in the seconddegree, attempted murder in the second degree, criminal possession of a weapon in thesecond degree (two counts) and reckless endangerment in the first degree. Following ajury trial, he was convicted as charged and sentenced to an aggregate prison term of 40years to life, plus five years of postrelease supervision. Defendant appeals.
Defendant contends that his convictions for murder in the second degree andattempted murder in the second degree are not supported by legally sufficient evidenceand are against the weight of the evidence. To convict defendant of murder in the seconddegree, the People were required to prove that "[w]ith intent to cause the death of anotherperson, he cause[d] the death of such person or of a third person" (Penal Law§ 125.25 [1]). The conviction for attempted murder in the second degreerequired proof that "with the intent to cause the death of another person,[*2][defendant] engage[d] in conduct which tend[ed] to effectcommission of that crime" (People v Fernandez, 88 NY2d 777, 783 [1996];see Penal Law §§ 110.00, 125.25 [1]).
Taken together, the trial testimony of multiple witnesses established that a disputeerupted between defendant and Victor Toomer while they were playing dice in the streetwith several other men. Defendant allegedly exclaimed, "You cheated me" and punchedToomer. Defendant was chased down the street by Toomer and the other men andescaped, warning that he would be back. Defendant went to a house in an adjoiningneighborhood, where he asked for a gun, stating that "somebody around the corner wastrying to play him" and that he was "going to go over there and take care of it." Analleged leader of the Bloods gang directed another man to give defendant the gun anddirected the victim to accompany defendant when he returned to the street where Toomerwas, to "make sure he was all right." When they returned to the scene of the dice game,the victim—who had a friendly relationship with Toomer—crossed thestreet and began speaking with him, trying to mediate the dispute. Meanwhile, defendantremained on the other side of the street and, according to Toomer's testimony, "[took]cover behind [a] car." Toomer and the victim stood close together as they were speaking,and Toomer asked the victim what he was there to do. The victim responded, "I didn'tknow it was you," and said that he wanted to settle the disagreement. Toomer then sawdefendant "duck a little bit under the car" and then "come over the car and start[ ]shooting." Witnesses heard several gunshots. One witness saw defendant "crouch down"behind the car just before the gunshots rang out, and another saw defendant fire the gun.The victim was struck in the head by a bullet and fell to the ground. Toomer removed agun from the victim's waistband and fired at defendant, who fled. Defendant thenallegedly returned to the house where he had obtained the gun and returned it to theowner after wiping it down. When asked about the victim's whereabouts, defendantallegedly claimed that he "ran the other way."
A detective who investigated the crime scene found two .25 caliber shell casings neara car across the street from the victim's body, as well as several .22 caliber casings closerto the body. He opined that the person who fired the .25 caliber weapon was standingnear the car and across the street from the victim. Two days later, police stopped the manwho had given defendant the gun for an unrelated infraction and found that he wascarrying a .25 caliber handgun. Subsequent testing revealed that a bullet test-fired fromthis gun was consistent with the projectile found in the victim's head.
Defendant fled to Pennsylvania, where he was subsequently arrested. He told policethat he was on the street where the victim was shot, but claimed that he was smokingmarihuana with a friend and fled when he heard the gunshots. A woman who was datingdefendant at the time of the shooting testified that he told her that he got into a disputewith another "kid" while playing dice, and that after defendant returned to the scene, thevictim "got in the middle trying to play peacemaker." Defendant said that the other "kid"fired a gun at defendant, and he fired back and ran away. A witness who wasincarcerated with defendant testified that he asked defendant whether he had shot thevictim and defendant responded, "[C]ome on, like he shouldn't have been trying to playpeacemaker in the process of me letting it go." The witness said that defendant made ashooting motion with his hand while he said "letting it go," and that defendant added thathe "didn't mean for it to go down the way it [did]."
Defendant argues that the evidence establishes that his target was Toomer, not thevictim, and that the People neither proved that he intended to kill the victim, nor that heintended to kill—rather than frighten or injure—Toomer. However, underthe doctrine of transferred intent, a defendant who intends to cause the death of oneindividual but instead causes the death of another, unintended victim bears the samecriminal liability as that which would have resulted [*3]ifthe intended target had been killed (see People v Fernandez, 88 NY2d at781-782; People v Molina,79 AD3d 1371, 1373-1374 [2010], lv denied 16 NY3d 861 [2011]; People v Ballard, 38 AD3d1001, 1003 [2007], lv denied 9 NY3d 840 [2007]). Further, the intent to killmay be inferred from the surrounding circumstances and a defendant's actions, "andindeed this may be the only way of proving intent in the typical case of criminal attempt"(People v Bracey, 41 NY2d 296, 301 [1977] [internal quotation marks andcitation omitted]; see People vJohnson, 106 AD3d 1272, 1278 [2013], lv denied 21 NY3d 1043[2013]). Contrary to defendant's assertion, there is no legal inconsistency, in light of theevidence presented, with the jury finding defendant guilty of both murder for the death ofthe victim, based upon a theory of transferred intent, and attempted murder, based uponhis intent to kill Toomer (seePeople v Casseus, 120 AD3d 828, 829 [2014]). Viewing the evidence in thelight most favorable to the People, we find that the proof was legally sufficient to supportdefendant's convictions of these crimes (see People v Culpepper, 118 AD2d 866,866 [1986], lv denied 68 NY2d 667 [1986]; see also People v Miller, 118 AD3d 1127, 1128 [2014],lv denied 24 NY3d 1086 [2014]; People v Siler, 288 AD2d 625, 626-627[2001], lv denied 97 NY2d 709 [2002]). Further, according deference to thejury's credibility determinations and viewing the evidence in a neutral light, we find thatthe convictions were not against the weight of the evidence (see People vCasseus, 120 AD3d at 829; see also People v Williams, 124 AD3d 920, 921[2015]).
We agree, however, with defendant's further claim that County Court committedreversible error by denying his challenge for cause to a juror who had personal and/orprofessional relationships with two investigators involved in the case. A challenge forcause must be granted if a juror "has a state of mind that is likely to preclude him [or her]from rendering an impartial verdict based upon the evidence adduced at the trial" (CPL270.20 [1] [b]; accord People vHarris, 19 NY3d 679, 685 [2012]).
As to the first witness—an investigator in the District Attorney's office wholater testified, albeit briefly, at trial—the potential juror stated that he knew thewitness "quite well" and had previously worked for him in a small shop for two years.The juror stated that neither he nor the witness still worked for that business at the timeof trial. Further, when asked whether anything about his relationship with this witnesswould affect his ability to be impartial, the juror responded, "[The witness] has told me alot of information about different things that go on. I kind of have a strong feeling with[this witness] and I believe things he says. I hope it will not interfere with my judgment."The court did not inquire further about the juror's relationship with the witness.
The second witness was the lead investigator on defendant's case. The potential jurorstated that he had known the witness for about seven years and also saw him frequentlyat a softball league, where the juror and the investigator each had close family memberswho played on the same team. When asked whether the relationship would affect thejuror's ability to be fair, the juror answered that "he and I were talking the other day andhe said please make them aware that you know me and that I am the lead investigator onth[e] case." The juror then stated that the relationship would not affect his judgment.
A juror whose relationship with a potential witness is so close "that it is likely topreclude him [or her] from rendering an impartial verdict" (CPL 270.20 [1] [c]) must beexcused even if the juror states that he or she can be impartial, because "the risk ofprejudice arising out of the close relationship . . . [is] so great that recital ofan oath of impartiality could not convincingly dispel the taint" (People v Branch,46 NY2d 645, 651 [1979]; seePeople v Wlasiuk, 90 AD3d 1405, 1412 [2011]). In determining whether arelationship is so close as to require disqualification, a court should consider factors"such as the frequency, recency or [*4]currency of thecontact, whether it was direct contact, . . . the nature of the relationship aspersonal and/or professional . . . [and] any facet of the relationship likely topreclude the prospective juror from being impartial" (People v Greenfield, 112 AD3d 1226, 1228-1229 [2013],lv denied 23 NY3d 1037 [2014]; see People v Furey, 18 NY3d 284, 287-288 [2011]). As tothe first witness, a former working relationship, without more, will not necessarily giverise to implied bias requiring disqualification (see People v Scott, 16 NY3d 589, 595 [2011]; People vPickren, 284 AD2d 727, 727-728 [2001], lv denied 96 NY2d 923 [2001]).Here, however, the juror described the relationship as more than merely professional; hestated that he knew the witness well, had discussed many subjects with him, had strongfeelings about him and tended to believe him, and he volunteered that he was concernedas to whether the relationship would affect his judgment. The juror's longstanding socialrelationship with the second witness was sufficiently close that the witness was awarethat the juror had been called to jury duty on the case he had investigated, andsufficiently current that the juror and witness had spoken only a few days before the trial.Thus, this relationship, like that with the first witness, "was far more than a 'noddingacquaintance' " (Peoplev Littebrant, 55 AD3d 1151, 1154 [2008], lv denied 12 NY3d 818[2009], quoting People v Provenzano, 50 NY2d 420, 425 [1980]). Failure toexcuse the juror could have "create[d] the perception that the accused might not receive afair trial before an impartial finder of fact" (People v Furey, 18 NY3d at 287;accord People v Greenfield, 112 AD3d at 1230). Accordingly, based upon thesetwo relationships, defendant's challenge for cause should have been granted. In light ofthis holding, defendant's remaining contention regarding the potential juror isacademic.
Established precedent requires that we reach this conclusion. It bears mention that, indoing so, we remain rather painfully aware of the many difficulties that trial courtsencounter in the process of selecting juries, especially where, as here, the trial is lengthyand involves many witnesses. Nevertheless, because of the fundamental importance ofthe right to trial by an impartial jury, "the trial court should lean toward disqualifying aprospective juror of dubious impartiality, rather than testing the bounds of discretion bypermitting such a juror to serve" (People v Branch, 46 NY2d at 651). By erringon the side of disqualification, "[t]he worst the court will have done in most cases is tohave replaced one impartial juror with another impartial juror" (People vJohnson, 94 NY2d 600, 616 [2000] [internal quotation marks and citation omitted];see CPL 270.20 [1] [b]; [2]; People v Russell, 116 AD3d 1090, 1093 [2014]).Defendant used a peremptory challenge to excuse the potential juror and later exhaustedhis peremptory challenges; thus, the denial of his challenge for cause was reversible error(see People v Petke, 125AD3d 1103, 1105 [2015]; People v Young, 119 AD3d 970, 972 [2014]).
Peters, P.J., Rose and Lynch, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of Schenectady County for a newtrial.