| People v Thorpe |
| 2016 NY Slip Op 05586 [141 AD3d 927] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1](July 21, 2016)
| The People of the State of New York, Respondent, vScott Thorpe, Appellant. |
Michelle E. Stone, Vestal, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Hannah E.C. Moore, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Washington County (HallJr., J.), rendered March 18, 2011, upon a verdict convicting defendant of the crimes ofkidnapping in the second degree, attempted murder in the second degree, assault in thesecond degree, assault in the third degree, conspiracy in the second degree, criminalpossession of a weapon in the second degree, criminal use of a firearm in the first degree,gang assault in the second degree, menacing in the second degree, coercion in the firstdegree, criminal sale of a controlled substance in the third degree, criminal possession ofa controlled substance in the fifth degree, criminal sale of a controlled substance in thefifth degree, criminal possession of marihuana in the third degree and robbery in the firstdegree.
In April 2010, William Dingman lured the victim to a partially-constructed houseunder the pretense of performing roofing work for the owner. After descending from theroof, the victim was confronted by defendant, Richard Cates and Dingman and,following a brief struggle, was forced into the basement of the house. The victim's handswere tied around a pole and he was told to choose how he would like to die: either bychainsaw or by overdose. The victim, who was a recovering cocaine addict, choseoverdose and was thereafter forced by defendant and his accomplices to ingest heroinand ecstasy and was injected with various substances, including heroin and air. Whendefendant and his accomplices ran out of drugs and the—hypodermic needlebroke, they decided that they would drive the victim to a different location, where theywould force the victim—at gunpoint—to slit his wrist. The victimultimately escaped from the car and sought medical attention.
[*2] Defendant was charged in a 19-count indictment and,following a jury trial, convicted of 15 counts: kidnapping in the second degree, attemptedmurder in the second degree, assault in the second degree, assault in the third degree,conspiracy in the second degree, criminal possession of a weapon in the second degree,criminal use of a firearm in the first degree, gang assault in the second degree, menacingin the second degree, coercion in the first degree, criminal sale of a controlled substancein the third degree, criminal possession of a controlled substance in the fifth degree,criminal sale of a controlled substance in the fifth degree, criminal possession ofmarihuana in the third degree and robbery in the first degree. County Court sentencedhim, as a second felony offender, to an aggregate prison term of 75 years to be followedby five years of postrelease supervision.[FN1] Defendant now appeals.
Defendant argues that his convictions for attempted murder in the second degree andgang assault in the second degree are not supported by legally sufficient evidence and areagainst the weight of the evidence. Inasmuch as defendant made only a general motion todismiss at the close of the People's proof, his challenge to the legal sufficiency of theevidence is unpreserved (seePeople v Powell, 128 AD3d 1174, 1175 [2015]; People v Junior, 119 AD3d1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]). Nevertheless, inconducting our weight of the evidence review, we necessarily consider whether all of theelements of the charged crimes were proven beyond a reasonable doubt (see People v Briggs, 129 AD3d1201, 1202 [2015], lv denied 26 NY3d 1038 [2015]; People v Santiago, 118 AD3d1163, 1164 [2014], lv denied 24 NY3d 964 [2014]). In a weight of theevidence review, where a different finding would not have been unreasonable, we"weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley,69 NY2d 490, 495 [1987] [internal quotation marks and citations omitted]; accord People v Carnevale,101 AD3d 1375, 1377 [2012]).
For a conviction of attempted murder in the second degree, "the People wererequired to prove that defendant, acting with intent to cause the death of another,engaged in conduct which tended to effect the commission of that crime" (People v Greenfield, 112AD3d 1226, 1226 [2013], lv denied 23 NY3d 1037 [2014]; see PenalLaw §§ 110.00, 125.25 [1]). To obtain a conviction for gang assault inthe second degree, the People had to prove that, "with intent to cause physical injury toanother person and when aided by two or more other persons actually present,[defendant] cause[d] serious physical injury to such person" (Penal Law§ 120.06). The term " '[p]hysical injury' means impairment ofphysical condition or substantial pain" (Penal Law § 10.00 [9]) and the term"[s]erious physical injury" means, as relevant here, "physical injury which creates asubstantial risk of death" (Penal Law § 10.00 [10]).
At trial, the victim testified that defendant, Cates and Dingman tied his hands arounda pole in the basement of the house and told him that they were going to kill him forstealing 11 pounds of marihuana from defendant 14 years earlier. The victim stated thatdefendant told him that it was "going to go one way or the other," namely, that he couldbe cut up, buried and his body never found or his family could believe that he died of anoverdose. According to the victim, defendant was "in control the whole time" and toldthe others what to do. The victim asserted that, after choosing an overdose, defendantand his accomplices "pull[ed his] head back" to make him sniff heroin, dumped beerdown his face, caused heroin and cocaine to be injected [*3]into veins in his inner arms between four and eight timesand forced him to swallow a "handful of ecstasy a couple of times." According to thevictim, defendant stated, "you're going out like a big drug dealer" and, at some point,asked, "how much cocaine is it going to take to kill you?" The victim vomited severaltimes. He further testified that defendant and his accomplices had a knife and a gun,showed him pictures of mutilated people, including children, who defendant claimed tohave killed and took pictures and videos of the incident. The victim testified thatdefendant and his accomplices also injected him with air in an effort to stop his heart andthat they were all screaming "die" as they did so. The victim asserted that the needlebroke and that, because he was fearful that defendant and his accomplices would thenresort to using the chainsaw to kill him, he suggested that they force him to slit his wrist.Defendant accepted this plan, dictated a suicide note to the victim and, at gun point,forced the victim into the car from which he ultimately escaped. The victim testified thatthe trauma of the ordeal caused him to lapse into a period of heavy drinking andmarihuana use and resulted in him losing his job and his admission to a mental healthunit.
The victim's account of the harrowing incident was largely corroborated through thetestimony of Dingman, investigators in the Washington County Sheriff's Office and theemergency room physician that treated the victim, as well as the forensic evidence andthe numerous pictures and videos admitted into evidence, which depicted the victim in adistressed state during the terrifying ordeal. According to Dingman, defendant haddeveloped the plan to lure the victim to the house, had often expressed a desire to kill thevictim and threatened to harm the victim's children if the victim did not cooperate.Dingman stated that the victim was forced to sniff "[p]owder," swallow pills and injecthimself with heroin while at gunpoint. Dingman further testified that, when the overdoseplan was unsuccessful, defendant was going to force the victim to slit his wrist. Theinvestigators found a syringe in both the basement and the vehicle from which the victimescaped and, with Dingman's assistance, located a bag—containing pills, a ropeand gloves—hidden by defendant on the side of the road. DNA consistent with thevictim was found on both syringes.
The emergency room physician testified that the victim had four puncture marks onhis right inner arm and tested positive for opiates and cocaine. He stated that the victimreported nausea, vomiting and a pain level of 6 out of 10, had an elevated pulse,respiratory rate and blood pressure and had a high glucose level and white blood count.He testified that an overdose of heroin and cocaine can result in death, as cocaine causesincreased blood pressure and other blood pressure-related problems and heroin preventsa portion of the brain from functioning. The physician further asserted that injections ofair into the body can cause "a lot of very harmful things," such as stroke and death.
While a different result would not have been unreasonable, viewing the foregoingevidence in a neutral light and according deference to "the jury's unique opportunity toview the witnesses, hear the testimony and observe demeanor" (People v Lanier, 130 AD3d1310, 1311 [2015] [internal quotation marks and citations omitted], lvdenied 26 NY3d 1009 [2015]), we are satisfied that defendant's convictions forattempted murder in the second degree and gang assault in the second degree aresupported by the weight of the credible evidence. Defendant's intent to physically injurethe victim, with the aid of Cates and Dingman, and to cause his death can be readilyinferred from the circumstances, including the repeated and forceful administration ofheroin, cocaine and ecstasy to the victim, the injections of air into the victim'sbloodstream and the fact that defendant dictated a suicide note to the victim, as well asdefendant's statements to the victim (see People v Hamilton, 127 AD3d 1243, 1245 [2015],lv denied 25 NY3d 1164 [2015]; People v Caldwell, 98 AD3d 1272, 1272-1273 [2012],lv denied 20 NY3d 985 [2012]; People v Zindle, 48 AD3d 971, 973 [2008], lvdenied 10 NY3d 846 [2008]). Additionally, as [*4]demonstrated by the testimony of the victim and thephysician, the victim sustained physical injuries when defendant repeatedly caused theforeign substances of cocaine, heroin and air to enter the victim's bloodstream in a shortperiod of time, thereby creating serious adverse internal reactions which alone, ortogether, put the victim's life substantially at risk (see People v Daniels, 134 AD3d 525, 525 [2015]; compare People v Tucker, 91AD3d 1030, 1031-1032 [2012], lv denied 19 NY3d 1002 [2012]).Accordingly, we decline to disturb defendant's convictions of attempted murder in thesecond degree and gang assault in the second degree.[FN2]
Additionally, County Court properly determined that defendant's conviction forkidnapping in the second degree was not precluded by the merger doctrine. "The mergerdoctrine is intended to preclude conviction for kidnapping based on acts which are somuch the part of another substantive crime that the substantive crime could not havebeen committed without such acts and that independent criminal responsibility may notfairly be attributed to them" (People v Cassidy, 40 NY2d 763, 767 [1976]; see People v Mao-Sheng Lin,50 AD3d 1251, 1252 [2008], lv denied 10 NY3d 961 [2008]). Here, therestraint of the victim lasted several hours, was not "simultaneous and inseparable" fromdefendant's other crimes and amounted to more than the "minimal intrusion necessaryand integral to [the commission of the other crimes]" (People v Gonzalez, 80NY2d 146, 153 [1992]; seePeople v Collazo, 45 AD3d 899, 901 [2007], lv denied 9 NY3d 1032[2008]; People v Rosado,26 AD3d 532, 533 [2006], lv denied 7 NY3d 762 [2006]). Moreover, themerger doctrine was not intended to apply to "kidnapping abductions designed to. . . accomplish murder" (People v Miles, 23 NY2d 527, 539 [1969],cert denied 395 US 948 [1969]; see People v Kalyon, 142 AD2d 650,650-651 [1988], lv denied 72 NY2d 1046 [1988]).
Defendant also argues that County Court erred in denying his challenges for cause tojuror Nos. 92 and 57. "[A] prospective juror whose statements raise a serious doubtregarding the ability to be impartial must be excused unless the juror states unequivocallyon the record that he or she can be fair and impartial" (People v Chambers, 97NY2d 417, 419 [2002]; see CPL 270.20 [1] [b]; People v Arnold, 96NY2d 358, 362 [2001]). While prospective jurors are not required to engage in "anyparticular expurgatory oath" or recite certain " 'talismanic' words, [they] mustclearly express that any prior experiences or opinions that reveal the potential for biaswill not prevent them from reaching an impartial verdict" (People v Arnold, 96NY2d at 362; see People vHarris, 19 NY3d 679, 685-686 [2012]).
Here, juror No. 92 indicated that she had previously sat on a grand jury and found it"difficult" to view the pictures and hear the evidence, expressed hesitation about herability to not be influenced by "emotion or shocking photos" and acknowledged readingabout defendant in a [*5]newspaper.[FN3] County Court addressedjuror No. 92, stating, "I know you're not going to like [seeing pictures of gory injuries],there may be some things in there that you don't care to see, wouldn't care to see again,but can you still do it[?]" Juror No. 92 responded, "I would be fair." Upon further inquiryby the court, juror No. 92 agreed that a particular newspaper was not "always 100 percentaccurate" and that the opinions she forms after reading newspaper articles were "notalways right." County Court then asked, "would you look at the evidence, pictures,documents, reports, whatever kinds of things the evidence is and make your decision onthat, not anything you learned outside of the courtroom or before the case started?" JurorNo. 92 stated, "Yes." In our view, the responses given by juror No. 92 constituted clearand unequivocal assurances that she could be fair and impartial (see People v DeDeo, 59 AD3d846, 848 [2009], lv denied 12 NY3d 782 [2009]; People v Knowles, 79 AD3d16, 23 [2010], lv denied 16 NY3d 896 [2011]). Accordingly, County Courtdid not abuse its discretion in denying defendant's challenge for cause to juror No.92.
With respect to juror No. 57, at the time that defendant exercised a peremptorychallenge on juror No. 57, the regular jury and the first alternate juror had already beenselected and the second alternate was being selected. Defendant had one remainingperemptory challenge left after the second alternate juror seat was filled.[FN4] The first alternate jurortook part in deliberations; the second alternate juror did not. Under these circumstances,we need not address the merits of County Court's denial of defendant's challenge forcause to juror No. 57 (seePeople v Haardt, 129 AD3d 1322, 1322-1323 [2015]; People v Rivera, 7 AD3d358, 359 [2004], lv denied 3 NY3d 741 [2004]; People v Henry, 116AD2d 737, 737-738 [1986], lv denied 67 NY2d 944 [1986]). In any event, werewe to reach the merits, we would find that, although juror No. 57's ability to serveimpartially was called into question by her statement that she had made an assumptionabout defendant's guilt after reading newspaper articles, her subsequent statementsprovided the requisite unequivocal assurance of impartiality and, thus, County Court'sdenial of defendant's challenge for cause was appropriate (see People v Russell, 55 AD3d940, 940-941 [2008], lv denied 11 NY3d 900 [2008]).
Defendant further asserts that he was deprived of a fair trial because the People'sinvestigators allegedly tampered with one of his potential witnesses. During the People'scase-in-chief, defense counsel alerted County Court that two members of the WashingtonCounty Sheriff's Office had questioned a subpoenaed defense witness in the grand juryroom of the courthouse as to the substance of his potential testimony. County Courtpromptly conducted a limited hearing to address the matter. The investigatorsconsistently testified that they conducted a routine, follow-up interview and that they didnot coerce, threaten, intimidate or otherwise engage in conduct aimed at influencing thetestimony of the potential witness. The potential witness did not testify at the hearing,and defense counsel did not request that he do so. Upon the hearing's conclusion, defensecounsel requested that the investigators be admonished, indicated that he "want[ed] to getthrough the trial" and reserved the right to make further motions after speaking with thepotential witness "again." The court concluded that there was no evidence of [*6]improper conduct, and the People resumed the presentationof their case.
In this situation, the potential witness should have been called and questioned at thehearing regarding the investigators' interview. However, there is no discussion on therecord as to why defense counsel did not call the potential witness at the hearing orduring the course of the trial. The record also does not reveal whether defense counselspoke with the potential witness after the hearing, and there is no offer of proof as towhat the potential witness would have testified to if he had been called by defendant,including whether he would have been able to offer any exculpatory evidence. In theabsence of any indication that defendant was prejudiced as a result of the interview, wecannot conclude—on this limited record—that the investigators' conductdeprived him of the right to present a defense (see People v Bounds, 100 AD3d 1523, 1524 [2012], lvdenied 20 NY3d 1096 [2013]; see also People v McRoy, 121 AD2d 566, 568[1986], lv denied 68 NY2d 771 [1986]). Moreover, as defense counsel's motionat the close of the People's proof did not assert any factual basis upon which to reopenthe hearing or raise any allegations that the interview had a prejudicial impact, defendantwaived any challenge to the adequacy of the hearing (see People v Gonzalez, 89 AD3d 1443, 1444 [2011], lvdenied 19 NY3d 973 [2012]; People v Akleh, 297 AD2d 574, 574 [2002],lv denied 99 NY2d 579 [2003]).[FN5]
Defendant additionally argues that he was deprived of the effective assistance ofcounsel. While defense counsel did not request an accomplice charge as to Dingman(see CJI2d[NY] Accomplice as a Matter of Law), defendant failed to establishthe absence of a strategic reason or other legitimate explanation for defense counsel'sinaction in this regard (seePeople v Anderson, 120 AD3d 1549, 1549 [2014], lv denied 25 NY3d1198 [2015]; People vWalker, 50 AD3d 1452, 1454 [2008], lv denied 11 NY3d 795 [2008];People v Thomas, 33 AD3d1053, 1055 [2006], lv denied 8 NY3d 885 [2007]; People v Hines, 24 AD3d964, 966 [2005], lv denied 6 NY3d 834 [2006]). Moreover, defendant wouldnot have derived a benefit from an accomplice charge, as there was considerablecorroboration of Dingman's testimony (see People v Clarke, 101 AD3d 1646, 1647 [2012], lvdenied 20 NY3d 1097 [2013]; People v Leffler, 13 AD3d 164, 165 [2004], lvdenied 4 NY3d 800 [2005]). As for defendant's remaining ineffective assistance ofcounsel claims, we note that counsel will not be found to be ineffective on the basis thathe or she failed to make an argument or motion that has little or no chance of success (see People v Brock, 107 AD3d1025, 1029 [2013], lv denied 21 NY3d 1072 [2013]; People v Garcia, 30 AD3d833, 835 [2006]). In the face of overwhelming proof of defendant's guilt, defensecounsel advanced a clear trial strategy of challenging the evidence supporting the topcounts of the indictment and the credibility of the victim and Dingman, made timely andappropriate motions, presented cogent opening and closing statements and effectivelycross-examined the People's witnesses. Our review of the record as a whole reveals thatdefendant received meaningful representation.
Lastly, defendant advances several meritless challenges to sentencing. Inasmuch asthe [*7]People provided defendant with notice of hispredicate felony convictions prior to sentencing and defendant failed to controvert any ofthese convictions at the time of sentencing, there was substantial compliance with CPL400.21, and County Court properly sentenced defendant as a second felony offender (see People v Wilkins, 118AD3d 1038, 1039 [2014], lv denied 24 NY3d 965 [2014]; People v Gonzalez, 61 AD3d1428, 1428-1429 [2009], lv denied 12 NY3d 925 [2009]).[FN6] Further, County Courtlawfully imposed consecutive sentences for defendant's convictions of kidnapping in thesecond degree, attempted murder in the second degree and robbery in the second degree,as the acts underlying each of these crimes were separate and distinct (see People vRamirez, 89 NY2d 444, 451 [1996]; People v Johnson, 117 AD3d 637, 639 [2014], lvdenied 26 NY3d 930 [2015]; People v May, 263 AD2d 215, 221 [2000],lv denied 94 NY2d 950 [2000]). Considering defendant's criminal history, thecallous and premeditated nature of his crimes and his lack of remorse, County Court didnot abuse its discretion in imposing sentence, and we discern no extraordinarycircumstances that warrant modification of the sentence in the interest of justice (see People v Rouse, 4 AD3d553, 558 [2004], lv denied 2 NY3d 805 [2004]; People v Mileto, 290AD2d 877, 880 [2002], lv denied 97 NY2d 758 [2002]).
With the exception of defendant's contention that the People belatedly disclosedDingman's trial preparation videotape, which is unpreserved, defendant's remainingarguments have been examined and found to be unavailing.
Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ., concur. Ordered that the judgmentis affirmed.
Footnote 1:Although County Courtattempted to impose consecutive periods of postrelease supervision, the periods mergedby operation of law (see Penal Law § 70.45 [5] [c]; People v Passino, 104 AD3d1060, 1061 [2013], lv denied 22 NY3d 1157 [2014]).
Footnote 2:Defendant's contentionthat his acquittal on the charge of assault in the second degree is inconsistent with hisconvictions for attempted murder in the second degree and gang assault in the seconddegree was not preserved for our review (see People v Satloff, 56 NY2d 745, 746[1982]; People v Vargas, 72AD3d 1114, 1119 n 5 [2010], lv denied 15 NY3d 758 [2010]; People v Britton, 27 AD3d1014, 1015 [2006], lv denied 6 NY3d 892 [2006]), and we decline to takecorrective action in the interest of justice (see People v Jones, 79 AD3d 1244, 1245 n [2010], lvdenied 16 NY3d 832 [2011]; People v Johnson, 40 AD3d 1270, 1273 [2007], lvdenied 9 NY3d 877 [2007]).
Footnote 3:We note that defendantused a peremptory challenge on juror No. 92 and exhausted his peremptory challengesbefore the selection of the regular jury was complete (see CPL 270.20 [2];People v Harris, 19 NY3d at 685).
Footnote 4:Although the transcriptis subject to varying interpretations, defendant may have mistakenly believed that he hadexhausted his peremptory challenges as to the second alternate juror.
Footnote 5:Defendant does notargue on appeal that trial counsel was ineffective for proceeding in this manner.Significantly, defense counsel did not put on any proof, and the decision not to call anywitnesses may have been a strategic one. Furthermore, the victim testified that thepotential witness, his wife's brother, "knew that [he] was being killed" and that defendantwas going to give the potential witness money "so that [his] kids would be taken care of."
Footnote 6:Defendant'sconstitutional challenge to the second felony offender statute (see Penal Law§ 70.06) is unpreserved.