| People v Parbhudial |
| 2016 NY Slip Op 00063 [135 AD3d 978] |
| January 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Adrian Parbhudial, Appellant. |
George J. Hoffman Jr., Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered May 2, 2011, upon a verdict convicting defendant of the crimesof attempted aggravated murder, criminal possession of a weapon in the third degree,reckless endangerment in the first degree, hindering prosecution in the first degree,perjury in the third degree and making an apparently sworn false statement in the seconddegree.
On February 20, 2010, several of defendant's family members participated in themurder of Ganesh Ramgoolam near the house where defendant and the family membersresided in the City of Schenectady, Schenectady County. Defendant allegedly hadknowledge of his family members' participation in the murder. The next day, at about7:00 p.m., a Special Operation Squad of the Schenectady Police Department executed ano-knock search warrant relative to the Ramgoolam murder at defendant's residence.After police had entered the residence, defendant fired from close range a 12-gaugeshotgun loaded with birdshot at police, striking officers whose armored gear ostensiblyprotected them from serious physical injury or death. Following his arrest, defendant wasquestioned by police about, among other things, his knowledge of the Ramgoolammurder and he allegedly repeatedly misled police about important aspects of suchcrime.
In May 2010, defendant was charged in a six-count indictment with attemptedmurder in the first degree, reckless endangerment in the first degree, criminal possessionof a weapon in the third degree, hindering prosecution in the first degree, perjury in thethird degree and making an [*2]apparently sworn falsestatement in the second degree. Thereafter, a supplemental four-count indictment in June2010 charged defendant with attempted aggravated murder, attempted aggravated assaultupon a police officer, attempted assault in the first degree and criminal possession of aweapon in the third degree.[FN*] The indictments were consolidatedupon consent pursuant to CPL 200.20 (4) in July 2010. Less than a week before the trialcommenced in January 2011, defendant made an oral application to sever three of thecounts, which County Court denied. A jury convicted defendant of attempted aggravatedmurder, criminal possession of a weapon in the third degree, reckless endangerment inthe first degree, hindering prosecution in the first degree, perjury in the third degree andmaking an apparently sworn false statement in the second degree. Defendant wassentenced to an aggregate prison term of 40 years to life and now appeals.
Defendant first argues that County Court abused its discretion in denying his motionto sever the charges of hindering prosecution in the first degree, perjury in the thirddegree and making an apparently sworn false statement in the second degree, particularlysince these charges resulted in extensive proof of the Ramgoolam murder being admitted.We initially note that all the charges had been consolidated upon consent, and, moreover,that defendant's motion to sever was untimely in that he did not make it until nearlyseven months after his arraignment and he failed to demonstrate good cause for the delay(see CPL 255.20 [1], [3]; People v Singh, 60 AD3d 875, 876 [2009], lvdenied 13 NY3d 862 [2009]; People v Vernon, 304 AD2d 679, 680 [2003],lv denied 100 NY2d 566 [2003]). County Court did, however, rule on the meritsof the motion. Although offenses joined pursuant to CPL 200.20 (2) (c) because they arebased on the same or similar statutes may be severed in the court's discretion (seeCPL 200.20 [3]), the court does not have statutory authority to sever offenses otherwiseproperly joined (see People v Lane, 56 NY2d 1, 7 [1982]; People v Raucci, 109 AD3d109, 117 [2013], lv denied 22 NY3d 1158 [2014]; People v Rogers, 94 AD3d1246, 1248 [2012], lv denied 19 NY3d 977 [2012]; see also People vBongarzone, 69 NY2d 892, 895 [1987]). Offenses are properly joined under CPL200.20 (2) (b) "[w]hen evidence of a crime charged in one indictment is material andadmissible as evidence of a crime charged in a second" (People v Shoga, 89 AD3d1225, 1229 [2011], lv denied 18 NY3d 886 [2012]; see People vBongarzone, 69 NY2d at 895).
Proof of the Ramgoolam murder by defendant's family members was a necessaryelement of the hindering prosecution in the first degree charge (see Penal Law§ 205.65; People v Chico, 90 NY2d 585, 588 [1997]), as well as thealleged perjury and sworn false statement charges. Defendant's knowledge of such crimeand its connection to individuals living in his home were also relevant to and admissiblein the People's case on the attempted aggravated murder charge to prove intent, motiveand the lack of mistake (seePeople v McCloud, 121 AD3d 1286, 1288-1289 [2014], lv denied 25NY3d 1167 [2015]; People vPiznarski, 113 AD3d 166, 179-180 [2013], lv denied 23 NY3d 1041[2014]; People v Raucci, 109 AD3d at 117); in fact, the central defense was thatdefendant did not know it was police entering his house and he mistakenly shot thembelieving they were intruders. Under the circumstances, the offenses were properlyjoined under CPL 200.20 (2) (b) and, accordingly, County Court did not err in denyingseverance (see People v Bongarzone, 69 NY2d at 895; People v Rogers,94 AD3d at 1248; People vCherry, 46 AD3d 1234, 1236 [2007], lv denied 10 NY3d 839[2008]).
The convictions were supported by legally sufficient evidence and were not againstthe [*3]weight of the evidence. When considering legalsufficiency, we view the evidence in the light most favorable to the People and determinewhether "there is a valid line of reasoning and permissible inferences from which arational jury could have found the elements of the crime proved beyond a reasonabledoubt" (People v Reed, 22NY3d 530, 534 [2014] [internal quotation marks and citations omitted]). In a weightof the evidence review, where "a different finding would not have been unreasonable,. . . [we] must, like the trier of fact below, weigh the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotation marks and citation omitted]). Defendant urges that the People's prooffell short in several respects, including by failing to establish that: he knew or reasonablyshould have known that he was shooting at police regarding the attempted aggravatedmurder conviction; he acted with the requisite depraved indifference to support thereckless endangerment in the first degree conviction; and he deceived police about theRamgoolam murder so as to commit the crime of hindering prosecution in the firstdegree.
The extensive trial evidence included proof that defendant was aware of theparticipants in and circumstances of the Ramgoolam murder when or immediately after itoccurred. He had also been involved in an ongoing dispute which led up to that murder.On the night of the murder, police questioned defendant and other family members atdefendant's residence, which was near the murder location. The following day, familymembers, including defendant, watched the street from the residence in an apparentlook-out fashion. When police arrived to execute the warrant, the police observed onesuch look out who immediately spotted them. Knowing that they had been seen, policebegan loudly announcing their presence, which witnesses from the area confirmed clearlyhearing. They were wearing gear marked "Police" in large letters, front and back. Uponentering and repeatedly yelling "police," they moved to a small hallway where, between 5to 15 seconds after entering, defendant shot at them from a stairwell located less than 10feet away. One officer ostensibly took the brunt of the shot in his protective body armorand another officer was also struck by birdshot. Defendant reloaded the gun, butsurrendered before attempting to shoot again. After defendant's arrest, he gave multipleconflicting statements about his role. He also gave police false information about variousaspects of the Ramgoolam murder.
Viewed most favorably to the People, there was legally sufficient proof thatdefendant knew that the individuals entering his residence were police engaged inofficial duties and he fired a shotgun from close range at them intending to cause thedeath of at least one officer. Since the shot discharged over 400 pellets and other officerswere in close proximity, there is legally sufficient evidence that, while defendantintended to kill one officer, he also recklessly created a grave risk of death to otherofficers, reflecting the separate mens rea of depraved indifference necessary for thereckless endangerment conviction (see People v Tambadou, 56 AD3d 953, 953-954 [2008],lv denied 12 NY3d 762 [2009]; People v Craft, 36 AD3d 1145, 1147 [2007], lvdenied 8 NY3d 945 [2007]; see also People v Trappier, 87 NY2d 55, 59[1995]). There is legally sufficient evidence of all the crimes of which defendant wasconvicted. Further, upon weighing the proof in the record and viewing it in a neutrallight, while giving deference to the jury's credibility determinations (see People v Romero, 7 NY3d633, 643-645 [2006]; People v Clark, 51 AD3d 1050, 1052 [2008], lvdenied 10 NY3d 957 [2008]), the convictions are supported by the weight of theevidence.
Lastly, defendant urges that his sentence—particularly the maximum of 40years to life for attempted aggravated murder—was harsh and excessive."[A]lthough we have the authority to modify a sentence that is unduly harsh or severeunder the circumstances, we reduce sentences only in extraordinary circumstances orwhere the trial court abused its discretion" (People v Rollins, 51 AD3d 1279, 1282 [2008], lvdenied 11 NY3d 930 [2009] [internal quotation [*4]marks and citations omitted]; see People v Chancey, 127AD3d 1409, 1413 [2015], lv denied 25 NY3d 1199 [2015]). In light of theserious nature of defendant's crimes in which several police officers were exposed to arisk of death or serious injury, we are unpersuaded to reduce the sentence (see People v Blackman, 90AD3d 1304, 1311 [2011], lv denied 19 NY3d 971 [2012]; People v Levy, 52 AD3d1025, 1028-1029 [2008]; People v Rollins, 51 AD3d at 1282-1283).
Garry, Rose, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The criminal possessionof a weapon charge in the supplemental indictment, which was premised upondefendant's non-citizen status (see Penal Law § 265.01 [5]), waslater dismissed.