| People v Poulin |
| 2018 NY Slip Op 01357 [159 AD3d 1049] |
| March 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v RoryPoulin, Appellant. |
James A. Caruso, Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Katy M. Moryl of counsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered September 12, 2013, upon a verdict convicting defendant of the crime of manslaughterin the second degree.
On the evening of December 3, 2011, defendant's girlfriend (hereinafter the victim) diedfrom a gunshot wound to the head. As a result of the incident, defendant was charged byindictment with murder in the second degree, manslaughter in the first degree, manslaughter inthe second degree, criminally negligent homicide and criminal possession of a weapon in thethird degree. Following a jury trial, defendant was convicted of manslaughter in the seconddegree, but acquitted of murder in the second degree and criminal possession of a weapon in thethird degree.[FN1] He wasthereafter sentenced to a prison term of 5 to 15 years. Defendant now appeals.
Defendant's core argument on appeal is that the trial evidence was legally insufficient tosupport the manslaughter conviction because the evidence demonstrated that he did not know[*2]that the shotgun was loaded. Where, as here, the legalsufficiency of a verdict is challenged, we view the evidence in the light most favorable to thePeople and assess whether "there is a valid line of reasoning and permissible inferences fromwhich a rational jury could have found the elements of the crime proved beyond a reasonabledoubt" (People v Reed, 22 NY3d530, 534 [2014] [internal quotation marks and citations omitted]). As relevant here, a personis guilty of manslaughter in the second degree when "[h]e [or she] recklessly causes the death ofanother person" (Penal Law § 125.15 [1]). "A person acts recklessly with respect toa result or to a circumstance described by a statute defining an offense when he [or she] is awareof and consciously disregards a substantial and unjustifiable risk that such result will occur orthat such circumstance exists. The risk must be of such nature and degree that disregard thereofconstitutes a gross deviation from the standard of conduct that a reasonable person wouldobserve in the situation" (Penal Law § 15.05 [3]).[FN2]
The incident took place in the home that defendant shared with the victim. Two friends werealso present, Charles Lott and Cheryl Pangborn. With the exception of Lott, the group had beendrinking throughout the day. Just prior to the shooting, defendant went upstairs and returnedcarrying a .12-gauge shotgun. The victim was sitting on a couch with Pangborn, who had fallenasleep. Lott testified that he told defendant to "[g]o put [the gun] back," but defendant"plop[ped]" down on a futon next to the victim and the gun went off "[a]s soon as [defendant]s[at] down." Both Lott and Pangborn, who was awakened by the gunshot, testified that defendantscreamed words to the effect, "Oh, my God what did I do? I [just] killed my [girlfriend]."Pangborn confirmed that defendant appeared to be in a state of shock and had a look of absolutedisbelief on his face. Lott took Pangborn outside and called 911. The responding police officersdescribed defendant as disheveled and crying. Upon inquiry, defendant stated, "I shot mygirlfriend." A video recording of defendant's interrogation at the police station, which lasted morethan five hours, was played for the jury at trial. During this interrogation, defendant essentiallyexplained that he had been arguing with the victim, that he went upstairs to retrieve the shotgunand that he wanted to scare the victim, so he pointed the shotgun at her head and pulled thetrigger. He repeatedly stated that he did not know the shotgun was loaded. Defendant, who wasfamiliar with guns, acknowledged that he did not check to see if the shotgun was loaded and thathe should not have pointed it at the victim. He explained that he had not used the shotgun inapproximately 10 years and knew that others had access to the shotgun. He admitted feelingtension on the trigger and "figured it had been cocked"—but not by him. He conceded thathe pulled the trigger knowing "that it had a 50/50 chance of going off." Defendant also signed atwo-page statement prepared by the investigators who conducted the interrogation, in which heacknowledged pointing the shotgun at the victim's head and pulling the trigger.
Although Lott's testimony is supportive of an accidental shooting, the jury could readilydetermine that defendant's own account of the incident shows otherwise. Even acceptingdefendant's statement that he did not know that the shotgun was loaded, he confirmed that hepointed the shotgun at the victim's head and pulled the trigger, recognizing that there was a realrisk it would fire. He knew that there was tension on the trigger, indicating it had been cocked,and yet failed to confirm that it was not loaded. In our view, a jury could reasonably conclude[*3]from these statements that defendant was aware of andconsciously disregarded a substantial and unjustifiable risk that the weapon woulddischarge.
This is all the more so given the testimony of the People's expert, Michael Sikirica, theRensselaer County Medical Examiner, who performed an autopsy on the victim. From theevidence of powder and soot at the site of the fatal wound, Sikirica testified "that the gun waspushed, at least loosely, against her skull when it went off"—an assessment that discountsLott's version of the event. While defendant's expert, Cyril Wecht, a physician, testified that theabsence of a red discoloration on the victim's skin and the configuration of soot indicated the gunwas some six inches from the victim's head, it was for the jury to assess the distinction betweenthe two medical opinions. In our view, the verdict is based upon legally sufficient evidence (see People v Peters, 126 AD3d1029, 1030 [2015], lv denied 25 NY3d 991 [2015]; People v Wilson, 61 AD3d 1269,1271 [2009], lv denied 14 NY3d 774 [2010]).
Next, defendant maintains that County Court erred by admitting into evidence twophotographs depicting the victim's deceased body, one at the scene and one from the autopsy,contending their prejudicial impact outweighed their probative value. The general rule withrespect to photographs of a victim's deceased body is that they "are admissible if they tend toprove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence,or to corroborate or disprove some other evidence offered . . . [and] should beexcluded only if their sole purpose is to arouse the emotions of the jury and to prejudice thedefendant" (People v Wood, 79 NY2d 958, 960 [1992] [internal quotation marks,emphasis, brackets and citation omitted]). Even accepting defendant's description of thephotographs as graphic,[FN3] County Court found, and we agree, that thephotographs were relevant with respect to establishing the distance between the gun and thevictim when the discharge occurred, and thus were relevant to the manner in which the shootingoccurred. Moreover, County Court properly instructed the jury to refrain from making anemotional judgment based on the photographs. As such, the court did not abuse its discretion byadmitting the photographs into evidence (see People v Wood, 79 NY2d at 960; People v Ford, 43 AD3d 571, 574[2007], lv denied 9 NY3d 1033 [2008]; People v Alvarez, 38 AD3d 930, 931 [2007], lv denied 8NY3d 981 [2007]).
We are not persuaded by defendant's contention that County Court erred in charging the juryas to the import of a mistake in fact, i.e., that defendant erroneously believed the shotgun was notloaded. The court tailored its charge pursuant to Penal Law § 15.20, advising thejury that a mistaken belief of fact does not relieve a defendant of criminal liability unless "suchfactual mistake, reasonable or unreasonable, negatives the culpable mental state required for thecommission of the offense" (see Penal Law § 15.20 [1] [a]). Contrary todefendant's argument, this charge does not superimpose a reasonableness requirement on thedefense (compare People v Gudz, 18AD3d 11, 14-16 [2005]). The court further clarified that the defense applied to each chargeand did not shift the burden of proof to defendant. As discussed above, the fact that defendantmistakenly believed the gun was not loaded did not preclude a finding of recklessness forpurposes of proving manslaughter in the second degree. In our view, the charge as given was[*4]appropriate.
Defendant's contention that the jury's verdict was repugnant given the acquittal on the chargeof criminal possession of a weapon in the third degree was not preserved for our review throughan appropriate, timely objection before the jury was discharged (see People v Keener, 152 AD3d1073, 1074-1075 [2017]). The contention, in any event, is unavailing because the weaponpossession charge, as charged to the jury, included an element of intent not found in themanslaughter count (see Penal Law §§ 265.01 [2]; 265.02 [1]; People v Elmy, 117 AD3d 1183,1184 [2014]; People v Malave, 52AD3d 1313, 1314 [2008], lv denied 11 NY3d 790 [2008]).
Finally, in accord with the discussion above, we find no error in County Court's denial ofdefendant's CPL 330.30 motion to set aside the verdict.
Garry, P.J., McCarthy, Egan Jr. and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:County Court dismissed thecharge of manslaughter in the first degree upon defendant's motion for a trial order of dismissal.The jury did not render a verdict on the charge of criminally negligent homicide due to CountyCourt's instruction that it should decline to deliberate on this charge should it find defendantguilty of manslaughter in the second degree.
Footnote 2:Although the statute furtheraddresses the impact of voluntary intoxication, and there was ample evidence demonstrating thatdefendant consumed alcohol prior to the incident, County Court granted defendant's applicationnot to charge the jury regarding the defense of intoxication.
Footnote 3:These photographs were notmade a part of the record on appeal. Upon inquiry by the Court, the People affirmed that theywere unable to locate the original trial exhibits. That said, even without actually viewing thephotographs, we can resolve this issue on the merits under the "sole purpose" rule reiterated inPeople v Wood (79 NY2d at 959-960). Defendant has made no argument to the contrary.