| People v Marin |
| 2018 NY Slip Op 05942 [164 AD3d 916] |
| August 29, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Maximo Marin, Appellant. |
Paul Skip Laisure, New York, NY (Benjamin S. Litman of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Hannah X. Collins of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D.Hollie, J.), rendered October 3, 2011, convicting him of reckless endangerment in the seconddegree and assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and thematter is remitted to the Supreme Court, Queens County, for further proceedings consistent withCPL 160.50.
This case arises out of an incident occurring on December 15, 2009, when the defendantinadvertently shot his friend Fernando Morales in the leg. At the joint trial of the defendant andMorales, who was charged, inter alia, with criminal possession of a weapon in the second degree,the People relied on statements given to the police by Morales and the defendant. Moralestestified in his own defense.
According to Morales, he found a gun on a park bench. The gun was wrapped inside a paperbag, which was inside a black grocery bag. Morales was concerned about the safety of children inthe park and intended to bring the gun to a police precinct station house. Before doing so,Morales first stopped at the defendant's home, which was near the station house, to ask thedefendant to accompany him to the station house. When Morales arrived at the defendant's home,he placed the bag containing the gun on a shelf, and then greeted the defendant and thedefendant's friend, who were both drinking beer. Morales informed the defendant that he hadfound the gun. Morales then got a beer and sat down on a futon. Morales eventually fell asleep.He awoke when he felt a burning pain in his leg. Morales saw the defendant holding the gun, andasked, "[W]hat the hell did you just do?" The defendant, who was looking at the gun, appeared"scared," and said, "I'm sorry." The defendant then went downstairs and placed the gun in thegarbage can. After Morales tended to his leg, he went downstairs and took the gun out of thegarbage can, hailed a taxi cab, and brought the gun home with him. Later, Morales contacted thedefendant and asked him to accompany him to the hospital, which the defendant did.
Morales was treated at the hospital, and X rays revealed 15 to 20 metallic pellets in the rightknee and femur consistent with a gunshot wound.
The defendant's statement to the police was consistent with Morales's version of [*2]events. The defendant stated that, after Morales fell asleep on thefuton, he wanted to see the firearm so he picked it up. While he was holding it, "it a shot [sic]."He stated that he accidentally shot his friend in the leg.
The gun was recovered from Morales's home. The defendant consented to a search of hishome, and no weapons or ammunition were found inside. The People's firearms expert testifiedthat he needed to open the gun in order to determine whether it was loaded.
The jury found the defendant guilty of reckless endangerment in the second degree (PenalLaw § 120.20) and assault in the third degree (Penal Law § 120.00[2]). The defendant appeals from the judgment of conviction, arguing, inter alia, that the jury'sverdict, specifically its finding that the defendant acted recklessly, was against the weight of theevidence.
Upon a defendant's request, this Court must conduct a weight of the evidence review (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]). "In conducting our weight of the evidence review,we have a responsibility to affirmatively review the record, independently assess all of the proof,substitute our own credibility determinations for those made by the jury in an appropriate case,determine whether the jury's determination was factually correct, and acquit a defendant if we arenot convinced that the jury was justified in finding that guilt was proven beyond a reasonabledoubt" (People v Fonerin, 159AD3d 717, 718 [2018]; see Peoplev Delamota, 18 NY3d 107, 116-117 [2011]; People v Danielson, 9 NY3d at348). "[W]eight of the evidence review requires a court first to determine whether an acquittalwould not have been unreasonable. If so, the court must weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9 NY3d at 348).
To convict the defendant of reckless endangerment in the second degree, the People wererequired to prove beyond a reasonable doubt that the defendant recklessly engaged inconduct which created a substantial risk of serious physical injury to another person (seePenal Law § 120.20). To convict the defendant of assault in the third degree,the People were required to prove beyond a reasonable doubt that the defendantrecklessly caused physical injury to another person (see Penal Law§ 120.00 [2]).
"A person acts recklessly with respect to a result or to a circumstance . . . whenhe [or she] is aware of and consciously disregards a substantial and unjustifiable risk that suchresult will occur or that such circumstance exists. The risk must be of such nature and degree thatdisregard thereof constitutes a gross deviation from the standard of conduct that a reasonableperson would observe in the situation" (Penal Law § 15.05 [3]). In determiningwhether a defendant acted recklessly, "it is defendant's perception or nonperception of the risk ofharm which is controlling" (People v Licitra, 47 NY2d 554, 559 [1979] [internalquotation marks omitted]). However, "objective evidence of the surrounding circumstances maybe weighed in making the factual determination" (id. at 559). "Among the factors to beconsidered in a case such as this are the defendant's familiarity with weapons in general, as wellas the particular gun, and his knowledge of whether the gun is likely to be loaded"(id.; see People v Stanfield, 36 NY2d 467, 472 [1975]; cf. People vLeonardo, 89 AD2d 214, 218 [1982], affd 60 NY2d 683 [1983]).
Here, the People failed to prove beyond a reasonable doubt that the defendant was aware ofand consciously disregarded a substantial risk that his conduct would cause physical injury toanother person. The People did not introduce evidence that the defendant was familiar withweapons, or the particular gun. Indeed, the gun was brought to the defendant's home by Morales,and it is undisputed that the gun discharged as the defendant handled it out of curiosity. Therewas no evidence from which it could be inferred that the defendant knew the gun was loadedwith live ammunition, or even knew how the particular gun operated. There was no evidenceintroduced that the defendant was aware of and consciously disregarded the risk that the gunmight misfire (see People v Evans,104 AD3d 1286, 1287 [2013]). Indeed, Morales testified that the defendant appeared"scared" when the gun discharged and that the defendant immediately stated that he was "sorry."The defendant attempted to dispose of the gun and helped the victim get medical care. Contraryto the People's contention, there was no testimony that the defendant was pointing the gun atMorales when it discharged, and there was no evidence introduced establishing that the only waythe pellets could have struck Morales's leg was by pointing the gun directly atMorales.
[*3] Upon the exercise of our factualreview power (see CPL 470.15), we determine that an acquittal of reckless endangermentin the second degree and assault in the third degree would not have been unreasonable. Givingthe evidence the weight it should be accorded, we find that the People failed to establish, beyonda reasonable doubt, that the defendant recklessly engaged in conduct which created a substantialrisk of serious physical injury to another person (see Penal Law § 120.20),or that the defendant recklessly caused physical injury to another person (see Penal Law§ 120.00 [2]). Thus, we determine that the jury was not justified in finding thedefendant guilty of reckless endangerment in the second degree and assault in the third degreebeyond a reasonable doubt. Accordingly, the judgment must be reversed and the indictmentdismissed (see generally People vRomero, 7 NY3d 633 [2006]).
In light of our determination, we need not address the defendant's remaining contention.Miller, Barros and Connolly, JJ., concur.
Rivera, J.P., dissents, and votes to affirm the judgment, with the following memorandum: Irespectfully dissent and vote to affirm the judgment of conviction.
On December 15, 2009, the defendant shot the victim in the right knee with a gun. Accordingto a statement provided by the defendant to law enforcement, the defendant wanted to "see" thegun so "he picked it up," and "while he was holding it a shot [sic]—he accidently shot hisfriend in the leg." The defendant was convicted, upon a jury verdict, of reckless endangerment inthe second degree (Penal Law § 120.20) and assault in the third degree (Penal Law§ 120.00 [2]). He was sentenced to three years' probation.
"[W]eight of the evidence review requires a court first to determine whether an acquittalwould not have been unreasonable. If so, the court must weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions. Based on the weight of the credible evidence, the court then decides whether thejury was justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,348 [2007]). Contrary to the determination of my colleagues in the majority, I am satisfied thatthe verdict of guilt is not against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d 633[2006]). According great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]), in myview, a jury could logically conclude that the defendant possessed the culpable mental state ofrecklessness.
"A person acts recklessly with respect to a result . . . when he is aware of andconsciously disregards a substantial and unjustifiable risk that such result will occur. . . [and] [t]he risk [is] of such nature and degree that disregard thereof constitutes agross deviation from the standard of conduct that a reasonable person would observe in thesituation" (Penal Law § 15.05 [3]). Here, the defendant knew that the object he washolding was a gun. Even someone who is presumably unfamiliar with guns is well-acquaintedwith a gun's potential danger and, in particular, aware of the risks associated with handling a gun,namely, that the gun may be loaded, may be discharged, and, upon discharging, may result ininjury or death. The evidence adduced at trial was also factually sufficient to show that thedefendant consciously disregarded that "substantial and unjustifiable" risk by handling the gun insuch a manner so as to cause it to discharge and strike the victim (see People v Licitra, 47NY2d 554, 559 [1979] ["Although the discharge of the weapon may well have beenunintentional, the jury was entitled to consider whether the risk created by defendant's actionswas substantial, unjustifiable and constituted a gross deviation from the standard of conduct thata reasonable person would have observed"]; Matter of Koron B., 303 AD2d 314, 314[2003] [determining that the Family Court's juvenile delinquency finding was not against theweight of the evidence where the appellant "removed the magazine from a pistol, pointed thepistol in the complaining witness's general direction and squeezed the trigger, causing achambered round to strike the complaining witness," as the evidence warranted the conclusionthat the "appellant consciously disregarded the substantial and unjustifiable risk that, due to hisinexperience with firearms, he might be mistaken as to whether the pistol was still capable offiring"]).
[*4] Accordingly, I find that the evidenceis of such weight and credibility as to convince me that the jury was justified in finding thedefendant guilty beyond a reasonable doubt. There is no basis to set aside the jury's verdict.Accordingly, I would affirm the judgment.