| People v Guzy |
| 2018 NY Slip Op 08714 [167 AD3d 1230] |
| December 20, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John M. Guzy, Appellant. |
John R. Trice, Elmira, for appellant, and appellant pro se.
Joseph A. McBride, District Attorney, Norwich (Hannah E.C. Moore, New York ProsecutorsTraining Institute, Inc., Albany, of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Chenango County (Revoir Jr., J.),rendered June 27, 2016, convicting defendant following a nonjury trial of the crimes of murder inthe second degree, attempted murder in the second degree, assault in the first degree (twocounts), criminal possession of a weapon in the second degree (two counts), criminal possessionof a weapon in the third degree, tampering with physical evidence, driving while intoxicated andcriminal possession of a weapon in the fourth degree (six counts).
On the afternoon of October 27, 2014, defendant, a retired police officer carrying anunlicensed semiautomatic handgun, was driving his vehicle while under the influence of alcoholon a state highway in Chenango County. Defendant closely approached and eventually passed anSUV that was being operated below the posted speed limit by Derek D. Prindle (hereinafter theson), whose father, Derek S. Prindle, was in the front passenger seat. While the accounts differedas to what transpired, it was undisputed that, after defendant passed the Prindle SUV, bothvehicles pulled into a parking lot and words were exchanged. During the encounter, defendantshot the father in the stomach, injuring him, and also shot the son in the chest and abdomen,causing him to bleed to death. The father and son were unarmed and no weapons were found atthe scene. After the shooting, defendant left the scene and drove to a nearby State Police barracksand reported the shooting, tossing the gun out of the window of his vehicle en route, where it waslater recovered. A search of defendant's home turned up unlicensed handguns, including anassault rifle, three revolvers, three semiautomatic handguns and ammunition. As relevant here,defendant was thereafter charged by indictment with murder in the second degree, attemptedmurder in the second degree, assault in the first degree (two counts), criminal possession of aweapon in the second degree (two counts), criminal possession of a weapon in the third degree,tampering with physical evidence, driving while intoxicated and criminal possession of a weaponin the fourth degree (six counts). Following a bench trial, defendant was convicted of theforegoing charges[FN1] andsentenced to consecutive prison terms of 25 years to life for the murder conviction and 15 yearsfor the attempted murder conviction, along with lesser concurrent prison sentences for theremaining convictions. Defendant appeals.
We affirm. Defendant argues that his convictions are against the weight of the evidence,including the rejection of his justification defense, which he contends the People failed todisprove. "[A] weight of the evidence analysis requires us to first determine, based on all of thecredible evidence, whether a different result would have been unreasonable and, if not, weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony to determine if the verdict is supported by the weight ofthe evidence" (People v Wilson, 164AD3d 1012, 1014 [2018]; seePeople v Sanchez, 32 NY3d 1021, 1023 [2018]; People v Danielson, 9 NY3d 342, 348 [2007]).
At trial, the father, a 61-year-old retiree, testified that his son, age 26, was driving an SUV onthe two-lane state highway about 51 miles per hour in a 55-mile-per-hour speed zone. A cardriven by defendant approached the SUV from the rear, followed very closely behind and thenpulled beside the SUV for a moment and then pulled in front of the SUV. Defendant thenslammed on his brakes and, after a pause of a few seconds, he again slammed on his brakes,blocking both lanes. The father motioned for defendant to pull into an adjacent parking lot to seewho was driving and what was going on. Defendant pulled into the parking lot, followed by theson and the father in the SUV, and then defendant, who appeared to be "very [a]ngry" and "veryirate," exited his vehicle and approached the SUV, yelling, "Have you got a f. . .. . . problem?" When defendant was about six inches from the passenger side of theSUV, defendant said, "I'll kill you both . . . [b]ecause you're a f. . .. . . a**hole." Defendant then spit in the father's face and, when the father steppedout of the SUV, defendant shot him in the chest. The son exited the vehicle to help his father andtried to restrain defendant by pinning him to the SUV, and the father tried to grab defendant's armand kicked him in the groin. At that point, defendant shot the son twice, once in the chest andonce in the abdomen, and then fled. There were no eyewitnesses to the shooting. A few witnessestestified to seeing wrestling or grappling among two or three men from a distance. An attorneydriving by testified that he saw two older men appear to grab one another and then saw two men(presumably the father and the son) grab the "lone guy" (presumably defendant). Several otherwitnesses testified to what the father stated immediately after the shooting, including that theincident began with road rage, that defendant said he would kill them before shooting them andthat defendant hit the father in the head with the gun and spat in his face. Some of the accountscontained inconsistencies with regard to, among other details, who pulled into the parking lotfirst and which person defendant shot first.
Defendant, a 57-year-old correction officer and retired police officer, offered a differentaccount of the incident. He recounted that the father continually gave him the middle finger asdefendant passed the SUV, so defendant pulled into the parking lot to "get away" from the SUV.According to defendant, the SUV followed him into the parking lot, where the son and the fatherexited the SUV and, after the father said, "Let's kick his ass," the pair approached defendant andbegan punching him in the face and head. Defendant fought back and spit in the father's facewhen the father kicked him. Defendant hit the son in the head with his gun a few times and toldthem to "[g]et the f. . . away" and, after the father said, "Get the gun," defendantshot the son twice, fearing that he would get his gun. When the father tried to grab the gun,defendant shot him.
Although a different verdict would not have been unreasonable, viewing the trial evidence ina neutral light, we do not find that County Court, the trier of fact, failed to give the evidence theweight that it should be accorded (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Rice, 162 AD3d 1244,1246 [2018], lv denied 32 NY3d 940 [2018]). We defer to the underlying credibilityassessments of the trier of fact, which had the opportunity to view the witnesses and hear theirconflicting testimony, and find that the verdict is supported by the weight of the credibleevidence (see id.). To that end, the father, which the trier of fact credited, testified thatdefendant was driving aggressively and, after the son pulled into the parking lot, it was defendantwho exited his vehicle and approached the SUV, cursing and angry that the son had been drivingslowly; defendant never identified himself as a retired police officer or indicated that he wascarrying a weapon. It is also significant that defendant threatened to kill the father and the sonbefore spitting in the father's face and then punched and shot the father after he exited the SUV,causing him severe injuries. When the son came to his stricken father's aid and tried to help himrestrain defendant, defendant twice shot the son at close range.
The evidence, including defendant's conduct, threats to kill the father and the son and thesurrounding circumstances, convincingly established that, acting with the requisite intent,defendant attempted to kill the father and killed the son, and he caused serious physical injury toboth by means of a deadly weapon, committing the charged crimes of attempted murder of thefather, intentional second degree murder of the son and assault in the first degree as to bothvictims (see People v Every, 146AD3d 1157, 1162 [2017], affd 29 NY3d 1103 [2017]). Defendant's testimony to thecontrary was rationally rejected as not credible, and his claim that he pulled into the parking lotto "get away from" the father and the son was not believable given that he was armed and drivingin front of the SUV and could have driven away from the slow-moving SUV. Further, defendantadmitted engaging in a fight with the son and the father and pulling his gun out, even though theywere concededly not armed with any weapons. Defendant did not call the police after theshooting but instead fled, attempting to conceal the murder weapon. Defendant's account that theson and the father repeatedly punched him in the face and head was belied by the testimony ofthe state trooper who saw defendant after he turned himself in. The trooper recounted that oncethe blood was washed from defendant's face, he had no significant injuries and had only a "little"injury on his head and an injury to his right hand consistent with discharging a semiautomatichandgun.
Defendant's argument that it was not reasonable for the factfinder to conclude that defendantinitiated the encounter given that the son and the father were considerably taller and bigger thandefendant is unconvincing. First, defendant, a highly-trained police veteran, knew he wascarrying a semiautomatic weapon. Second, defendant did not learn the larger statures of thefather and the son until after he approached the SUV, threatened them and the father exited theSUV; likewise, it was not until after shooting the father that the son exited the SUV anddefendant first observed the son's larger stature.[FN2] Moreover, while witnesses offered varyinginterpretations of the confrontation and some suggested that, immediately after the shooting, thefather made statements that contained some inconsistencies, none of them witnessed the shootingor had a good view of the events that led up to it. Several witness accounts were consistent withthe father's testimony, including that defendant had threatened to kill him and his son before heshot them. We are not persuaded by defendant's argument that the other witnesses' testimonyundermined the father's credibility or his account of the incident.
We further find that the credible evidence fully supports County Court's finding that thePeople disproved the justification defense beyond a reasonable doubt. The testimony establishedthat defendant did not reasonably believe that either the father or the son was using or about touse deadly physical force against him so as to justify his use of such force, and that a reasonableperson in defendant's position would not have perceived that deadly force was necessary(see Penal Law § 35.15 [1], [2] [a]; People v Petty, 7 NY3d 277, 284-285 [2006]; People v Jones, 3 NY3d 491, 496[2004]; People v Every, 146 AD3d at 1161-1162). It was undisputed that the father andthe son were unarmed and that defendant had no reason to believe that they had any weapons.Further, defendant provoked and escalated the encounter and was the initial aggressor and,indeed, he admitted at trial that he could have retreated before the shooting. As such, defendantwas not entitled to thereafter use deadly physical force in these circumstances (see PenalLaw § 35.15 [1] [a], [b]; People v Petty, 7 NY3d at 285; People v Gibson, 141 AD3d 1009,1011-1012 [2016]). In view of the foregoing, we do not find that the factfinder's resolution of theconflicting testimony and concomitant rejection of the justification defense were against theweight of the evidence (see People v Every, 146 AD3d at 1162; People v Gibson,141 AD3d at 1012).
Next, defendant contends that all of the criminal possession of a weapon convictions shouldbe dismissed because, as a correction officer and retired police officer, he is entitled to anexemption from prosecution under Penal Law § 265.20 (a) (1) (c) and (f) and underfederal law (see 18 USC § 926B [the Law Enforcement Officers Safety Actof 2004]). Although defendant moved to dismiss some of the weapon possession counts attrial,[FN3] he did so onentirely different grounds and never raised these statutory defenses at trial so as to put the Peopleto their burden of disproving them beyond a reasonable doubt (see Penal Law§ 25.00 [1]; see also William C. Donnino, Practice Commentaries,McKinney's Cons Laws of NY, Book 39, Penal Law § 265.20 at 412). Accordingly,defendant's present claims, raised for the first time on appeal, are unpreserved (see CPL470.05 [2]; People v Oshintayo, 163AD3d 1353, 1357 [2018], lv denied 32 NY3d 1006 [2018]).
Defendant also claims that his physician-client privilege was violated. Initially, althoughdefendant's medical records were privileged, he put his medical condition in issue by claimingthat he had been assaulted by the father and the son, thereby waiving this privilege (seeCPLR 4504 [a]; Dillenbeck v Hess, 73 NY2d 278, 280, 283 [1989]; People v Centerbar, 80 AD3d1008, 1009 [2011]; cf. People v Strawbridge, 299 AD2d 584, 589-591 [2002], lvdenied 99 NY2d 632 [2003], lv denied upon reconsideration 100 NY2d 599 [2003]).Further, defendant's disclosure of his medical condition to the state trooper to whom he reportedthe incident waived the privilege to the extent of that disclosure and the trooper was permitted totestify to her observations of defendant at that time (see People v Strawbridge, 299 AD2dat 590-591). More to the point, however, defendant's medical records were not introduced at trialand no medical witness testified to the treatment of defendant after the incident or to anystatements made by him while receiving treatment. Thus, any error in the hospital deliveringdefendant's medical records to the People rather than to County Court, as directed by the judicialsubpoena, and any defect in defendant's consent to the release of his medical records was notprejudicial and was harmless (see id. at 592; People v Carkner, 213 AD2d 735,738 [1995], lv denied 85 NY2d 970 [1995], lv denied upon reconsideration 86NY2d 733 [1995]; see also People vGreene, 9 NY3d 277, 280-281 [2007]).
Defendant further argues that his signed consent to withdraw blood was not voluntary.Notably, the People also obtained a search warrant from County Court to withdraw defendant'sblood. The blood test—conducted pursuant to defendant's consent and the searchwarrant—reflected that defendant's blood alcohol level was .11%. In moving to suppressthe blood test results, defendant only challenged the search warrant and never argued that hisconsent was involuntary.[FN4] Moreover, at the suppression hearing and againat trial, defendant failed to raise any objections to the testimony of the state trooper that he hadconsented to the blood test or to the voluntariness of the signed consent form.[FN5] As defendant never raised thisissue before County Court, a record was not made regarding the circumstances surrounding theconsent, and the People were never put to their burden of proving, from the totality of thecircumstances, that the consent was voluntary, and the record reflects no evidence from which afinding of involuntariness could be based (see People v Centerbar, 80 AD3d at1010-1011; People v Skardinski, 24AD3d 1207, 1208 [2005]; People v Dobson, 285 AD2d 737, 738 [2001], lvdenied 97 NY2d 655 [2001]). Accordingly, the challenge to defendant's consent to the blooddraw has not been preserved for our review (see CPL 470.05 [2]; cf. People v Marietta, 61 AD3d997, 998 [2009]; People v Skardinski, 24 AD3d at 1208). Given that the People wereentitled to rely on defendant's unchallenged signed consent to the blood draw, his challenge to thesearch warrant need not be addressed, and the conviction for driving while intoxicated will not bedisturbed.
Finally, we find defendant's challenge to his sentence to be meritless. Consecutive sentenceswere authorized for defendant's separate and distinct acts of shooting the son and the father,although they were both part of a single road-rage confrontation (see Penal Law§ 70.25 [2]; People vMcKnight, 16 NY3d 43, 47-49 [2010]; People v Grady, 40 AD3d 1368, 1375 [2007], lv denied 9NY3d 923 [2007]). To that end, "the test is not whether the criminal intent is one and the sameand inspire[ed] the whole transaction, but whether separate acts have been committed with therequisite criminal intent" (People v McKnight, 16 NY3d at 49 [internal quotation marks,brackets and citations omitted]; accordPeople v Brahney, 29 NY3d 10, 15 [2017]). Contrary to defendant's contentions, People v Rosas (8 NY3d 493[2007]), involving a double shooting and two murder in the first degree convictions for whichconcurrent sentences were required, does not compel concurrent sentences here. In Rosas,"the same acts constitute[d] both crimes" in that the charged first degree murder statute(see Penal Law § 125.27 [1] [a] [viii]) required that the defendantintentionally murdered one person and, as an aggravating factor, caused the death of anotherperson, with the intent to cause death or serious physical injury to the second person (id.at 498). Here, by contrast, given defendant's distinct intentional act of shooting the father in anattempt to cause his death and his separate acts of twice shooting the son, intending to andcausing his death, the same act did not constitute both crimes and consecutive sentences wereauthorized (see Penal Law § 70.25 [2]; People v McKnight, 16NY3d at 47-49; People v Grady, 40 AD3d at 1375).
We are further unpersuaded by defendant's argument that the sentence is harsh and excessivebased upon his lack of a criminal record, law enforcement history and health problems. CountyCourt considered all of the relevant mitigating factors but found, based upon defendant'ssenseless and unprovoked actions here, that he was "a threat and menace to the community"deserving of a lengthy sentence for the tragic murder of the son and attempted murder of thefather. Upon review of all of the circumstances, including the devastation caused to the Prindlefamily, defendant's failure to accept responsibility for his violent actions and the gravity of thedanger to the public caused by such an act of road rage, we find no extraordinary circumstancesor abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Parbhudial, 135 AD3d978, 982 [2016], lv denied 27 NY3d 967 [2016]). Defendant's remaining claims havebeen considered and determined to be without merit.
McCarthy, J.P., Lynch, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The indicted charges of criminaluse of a firearm in the first degree (two counts) were dismissed at the close of proof.
Footnote 2:The testimony established that, atthe time of the incident, defendant was approximately 5 feet 7 inches tall and weighed roughly240 pounds, the son was 6 feet 5 inches tall and weighed about 220 pounds and the father was 6feet tall and weighed about 160 pounds.
Footnote 3:At trial, defendant's motion todismiss count 9 and counts 12 through 17 was denied. That motion was premised on theargument that the evidence was legally insufficient to establish that defendant had possessed theguns that were seized from his home days after the shooting, as he had been in custody sinceshortly after the shooting.
Footnote 4:Defendant's motion to suppressthe lab results was premised upon a challenge to the search warrant, not to the voluntariness ofhis consent to the blood draw. At defendant's request, that motion was decided by County Courton the parties' submissions, including the transcribed hearing of the oral application for thesearch warrant. As a result, the suppression hearing testimony did not address the issuance of thesearch warrant. County Court denied the motion to suppress the search warrant, finding that therewas probable cause to support its issuance. We need not address defendant's challenge to thatwarrant given defendant's consent to the blood draw.
Footnote 5:Defendant's consent to the bloodtest renders the time limits in Vehicle and Traffic Law § 1194 (2) (a) (1)inapplicable (see People v Atkins, 85 NY2d 1007, 1009 [1995]; People v Marietta, 61 AD3d 997,998 [2009]).