| People v Holmes |
| 2015 NY Slip Op 05382 [129 AD3d 1692] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCarl J. Holmes, Appellant. |
Frank S. Falzone, Buffalo (Louis Rosado of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered March 18, 2009. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree and criminal possession of a weapon in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofattempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]) and two counts of criminal possession of a weapon in the second degree(§ 265.03 [1] [b]; [3]), defendant contends that the evidence wasinsufficient to convict him of attempted murder and that Supreme Court erred in itsinstructions to the jury. We reject those contentions.
The evidence at trial established that, on the morning of August 30, 2008, CoreySparrow, James Houston, and a third unnamed man confronted defendant and JaimeSmith at Smith's store on Genesee Street in the City of Rochester, and demanded moneyfrom Smith. After an altercation, defendant disarmed the third man and secured his gun.Although defendant called 911, he left in a car with Smith before the police arrived.Smith and defendant initially followed a car occupied by Sparrow, Houston, and the thirdman toward a prearranged meeting spot but, at defendant's direction, Smith drove to thetwo-apartment house in which defendant's mother resided. Defendant testified that he sodirected Smith because Sparrow and Houston, who were on parole and probation,respectively, had made threats against defendant's family when he called 911 at Smith'sstore. The car occupied by Sparrow, Houston, and the third man pulled up on the streetnear defendant and Smith, and Sparrow approached defendant, who was sitting in thepassenger seat of Smith's car. Sparrow, agitated, threatened defendant and, according todefendant, appeared to reach for a gun in his waistband. Defendant, using the gunacquired from the third man in the altercation at Smith's store, shot Sparrow three times,inflicting fatal injuries.
Defendant then climbed into the driver's seat of Smith's car and started to flee, butturned the car around and drove back toward Houston, who was in the side yard of thehouse where defendant's mother lived. Defendant fired gunshots at Houston from themoving vehicle. One bullet struck Houston in the elbow, and another bullet struck theside of the house. Defendant fled the scene, disposed of the gun and, after a few days,turned himself in to the police. Defendant was charged with second-degree murder andattempted second-degree murder with respect to the shootings of Sparrow and Houston,respectively, second-degree criminal possession of a weapon charges associated witheach of those shootings, and an additional second-degree criminal possession of aweapon charge. At trial, defendant was acquitted of the murder and weapon possessioncharge related to the shooting of Sparrow, but was convicted of the attempted murder ofHouston and the remaining two weapon possession charges.
[*2] Defendant contends that the evidence was insufficientto convict him of the attempted murder of Houston because there is no evidence that heintended to kill Houston instead of injuring him, and the injuries suffered by Houston didnot place Houston at "actual risk of death." Not only is that contention unpreserved by amotion for a trial order of dismissal specifically directed at that alleged insufficiency (see generally People vHawkins, 11 NY3d 484, 492 [2008]), we conclude that it is without merit."[T]he crime of attempted second degree murder is committed when, with the intent tocause the death of another person, one engages in conduct which tends to effectcommission of that crime . . . Where those elements converge, an attemptedmurder has occurred, regardless of whether the defendant has killed or even injured hisor her intended target. In other words, the crime of attempted murder does not requireactual physical injury to a victim at all" (People v Fernandez, 88 NY2d 777, 783[1996]). Here, the testimony at trial, which included witness descriptions of defendant"chasing" Houston, who was "running for his life," and then firing gunshots at Houstonas he drove toward him, was sufficient to support the jury's conclusion that defendantintended to kill Houston, regardless of the severity of the injury actually suffered byHouston.
Defendant further contends that the court erred in refusing to instruct the jury,pursuant to Penal Law § 35.20 (3), that it was required to determine ifdefendant was justified in using deadly physical force to prevent Houston fromcommitting or attempting to commit a burglary of his mother's apartment. Evenassuming, arguendo, that defendant was "licensed or privileged to be in" his mother'sapartment for purposes of section 35.20 (3), we conclude that there is no reasonable viewof the evidence that Houston was committing or attempting to commit a burglary therein,and thus defendant was not entitled to a jury instruction under that statute (seegenerally People v Cox, 92 NY2d 1002, 1004-1005 [1998]). Defendant failed topreserve for our review his contention that the court also should have given the jury a"choice of evils" instruction pursuant to Penal Law § 35.05 (see People v LaPetina, 9 NY3d854, 855 [2007], rearg denied 13 NY3d 855 [2009]), and we decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
Finally, we reject defendant's contention that the court erred in refusing to instructthe jury on the defense of temporary innocent possession of the firearm as applicable tocount five of the indictment. To warrant a jury instruction on that defense, "there must beproof in the record showing a legal excuse for having the weapon in [defendant's]possession as well as facts tending to establish that, once possession has been obtained,the weapon had not been used in a dangerous manner" (People v Banks, 76NY2d 799, 801 [1990] [internal quotation marks omitted]). We conclude that, "althoughthere is a reasonable view of the evidence upon which the jury could have found thatdefendant had a lawful basis for his initial possession of the firearm, there is noreasonable view of the evidence upon which the jury could have found that defendant'suse of the firearm thereafter was lawful" (People v Robinson, 63 AD3d 1634, 1634 [2009], lvdenied 13 NY3d 799 [2009]). Indeed, defendant's decision to take the firearm withhim after the initial altercation at Smith's store, despite having called 911, and keepingthe firearm with him during his escalating confrontation with Sparrow is "utterly at odd'swith [defendant's] claim of innocent possession" (People v Snyder, 73 NY2d 900,902 [1989] [internal quotation marks omitted]; see People v Ward, 104 AD3d 1323, 1324-1325 [2013],lv denied 21 NY3d 1101 [2013]). Despite defendant's contention to the contrary,"[i]t is well settled that justification is not a defense to a weapon possession count" (People v Hawkins, 113 AD3d1123, 1124 [2014], lv denied 22 NY3d 1156 [2014] [internal quotationmarks omitted]). Present—Centra, J.P., Carni, Lindley and DeJoseph, JJ.