| People v Daniels |
| 2019 NY Slip Op 05343 [174 AD3d 955] |
| July 3, 2019 |
| Appellate Division, Third Department |
[*1](July 3, 2019)
| The People of the State of New York,Respondent, v Edward Daniels, Also Known as Midget,Appellant. |
Carolyn B. George, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Rumsey, J. Appeals (1) from a judgment of the Supreme Court (Milano, J.), rendered March9, 2017 in Schenectady County, upon a verdict convicting defendant of the crimes of attemptedassault in the first degree and criminal possession of a weapon in the third degree, and (2) bypermission, from an order of the County Court of Schenectady County (Sypniewski, J.), enteredOctober 4, 2017, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
Defendant was charged by indictment with attempted murder in the second degree, assault inthe first degree, reckless endangerment in the first degree, criminal possession of a weapon in thethird degree and leaving the scene of an incident without reporting based on allegations that heintentionally hit the victim with his vehicle following a bar fight. At trial, Supreme Court chargedthe jury on attempted assault in the first degree as a lesser included offense of assault in the firstdegree and instructed the jury on justification with respect to all of the charges, except forleaving the scene of an incident without reporting. Defendant was convicted of attempted assaultin the first degree and criminal possession of a weapon in the third degree, but was acquitted ofthe remaining charges. Supreme Court sentenced defendant to two concurrent prison terms, thegreatest of which was seven years, followed by five years of postrelease supervision. During thependency of this appeal, defendant made a pro se motion to vacate the judgment of convictionpursuant to CPL 440.10 on the ground that he was denied the effective assistance of counsel. Inan October 2017 order, County Court denied the motion without a hearing. Defendant nowappeals from the judgment of conviction and, by permission, from the October 2017 order.
Defendant argues that his conviction for attempted assault in the first degree is not supportedby legally sufficient evidence and is against the weight of the evidence. Initially, defendant failedto preserve his challenge to the legal sufficiency of the evidence given that his motion for a trialorder of dismissal at the close of the People's proof was not "specifically directed at the error[s]being urged" on appeal (People vHawkins, 11 NY3d 484, 492 [2008] [internal quotation marks and citations omitted]; see People v Werkheiser, 171 AD3d1297, 1298 [2019]).[FN1] Nevertheless, we necessarily evaluate as part ofour weight of the evidence review whether each element of attempted assault in the first degreewas proven beyond a reasonable doubt (see People v Martinez, 166 AD3d 1292, 1293 [2018], lvdenied 32 NY3d 1207 [2019]; People v Coleman, 151 AD3d 1385, 1386 [2017], lv denied29 NY3d 1125 [2017]).
"When undertaking a weight of the evidence review, we must first determine whether, basedon all the credible evidence, a different finding would not have been unreasonable and[, if not,]then weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony to determine if the verdict issupported by the weight of the evidence. When conducting this review, we consider the evidencein a neutral light and defer to the jury's credibility assessments" (People v Gill, 168 AD3d 1140,1140-1141 [2019] [internal quotation marks and citations omitted]). As relevant here, aconviction for attempted assault in the first degree requires proof that, "[w]ith intent to cause[ ]serious physical injury to another person," the defendant attempted to "cause such injury. . . by means of a deadly weapon" (Penal Law § 120.10 [1];see Penal Law § 110.00).[FN2]
It is undisputed that defendant struck the victim with his vehicle. Defendant testified at trialthat, subsequent to a physical altercation with the victim at a bar, he was driving his vehicle whenhe saw the victim holding a revolver, pointing it at the ground and "jogging" toward him.Defendant stated that, in response, he "hit the gas" and "ducked [his] head." He further stated thathe "felt the car jump on the curb" and "remember[ed] slamming on the brakes." Defendanttestified that, when he came to a stop, he looked up and saw the victim running at "full speed."When asked whether he stopped to see whether the victim was okay, defendant replied that he"took off," explaining that the victim "had a gun when [he] hit [the victim]" and he was "scared."Defendant also stated that at no time was he trying to hit the victim with his vehicle.
The victim described a different version of events. The victim testified that, when he waswalking to his vehicle following the bar fight, he heard a car skid and saw a vehicle comingaround the corner. The victim further testified that the vehicle "jumped" the sidewalk and that he"immediately" knew that it was defendant and thought that defendant was going to kill him. Hestated that he attempted to run to the back porch of a nearby house but that, before he reached theporch, defendant "ran [him] over with the car." According to the victim, he woke up on theground and saw defendant's vehicle next to him, which was pulling off the curb and headingdown the street in the same direction from which defendant had initially come. The victimtestified that he was "bleeding all over the place" and felt like he "would die at any second."When asked whether he had a gun on his person, or in his vehicle, when he went to the bar, thevictim replied in the negative.
A different verdict would not have been unreasonable in light of defendant's testimony thathe did not intend to hit the victim with his vehicle. However, viewing the evidence in a neutrallight and according deference to the jury's credibility determinations, we conclude that the verdictconvicting defendant of attempted assault in the first degree is supported by the weight of theevidence (see People v Rawlinson,170 AD3d 1425, 1428 [2019]; People v Marshall, 162 AD3d 1110, 1112 [2018], lv denied31 NY3d 1150 [2018]).
However, we find merit in defendant's assertion that Supreme Court inadequately charged thejury regarding his justification defense. Although—as conceded by defendant—thisissue is not preserved, we exercise our interest of justice jurisdiction to take corrective action andreverse the judgment of conviction (see CPL 470.15 [6] [a]; People v Velez, 131 AD3d 129,133 [2015]; People v Feuer, 11AD3d 633, 635 [2004]). "[I]n a case involving a claim of self-defense, it is error for the trialcourt not to instruct the [jury] that, if [it finds] the defendant not guilty of a greater charge on thebasis of justification, [it is] not to consider any lesser counts" (People v Akbar, 169 AD3d 708,709-710 [2019] [internal quotation marks and citations omitted]; see People v Braithwaite, 153 AD3d929, 929 [2017], lv denied 30 NY3d 1103 [2018]; People v Velez, 131AD3d at 133; see generally People v Castro, 131 AD2d 771, 772-773 [1987]). Suchfailure constitutes reversible error (seePeople v Hop Wah, 171 AD3d 574, 575 [2019]; People v Braithwaite, 153AD3d at 930; People v Ross, 2AD3d 465, 466 [2003], lv denied 2 NY3d 745 [2004]).
Here, Supreme Court properly instructed the jury to consider justification with respect toattempted murder in the second degree, assault in the first degree, attempted assault in the firstdegree, reckless endangerment in the first degree and criminal possession of a weapon in the firstdegree. However, the court's instructions, together with the verdict sheet, failed to adequatelyconvey to the jury that, if it found defendant not guilty of attempted murder in the second degreebased on justification, it was not to consider the lesser counts to which the justification defenseapplied (see People v Velez, 131 AD3d at 133; People v Feuer, 11 AD3d at 635).This failure may have led the jury to conclude that deliberation on each of the five countsrequired reconsideration of the justification defense, even if it had already acquitted defendant ofattempted murder in the second degree based on justification (see People v Rosario, 169 AD3d 1066, 1067 [2019]; People vBraithwaite, 153 AD3d at 930; People v Velez, 131 AD3d at 133). Although the jury"may have acquitted on the top charge[s] without relying on defendant's justification defense[,] itis nevertheless impossible to discern whether acquittal of the top count[s] was based on the[jury's] finding of justification so as to mandate acquittal on the . . . lesser counts" towhich justification also applied (Peoplev Breckenridge, 162 AD3d 425, 426 [2018] [internal quotation marks, ellipses andcitation omitted], appeal dismissed 32 NY3d 1072 [2018], lv denied 32 NY3d1169 [2019]). Accordingly, a new trial is necessary (see People v Rosario, 169 AD3d 1066, 1068 [2019]; People vVelez, 131 AD3d at 134; People v Feuer, 11 AD3d at 635).
Defendant's remaining arguments on his appeal from the judgment of conviction, as well ashis appeal from the order denying his CPL article 440 motion, have been rendered academic byour decision.
Egan Jr., J.P., Lynch, Mulvey and Devine, JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the Supreme Court forfurther proceedings not inconsistent with this Court's decision. Ordered that the appeal from theorder is dismissed, as academic.
Footnote 1:Defendant also failed to renewthe motion to dismiss at the close of his proof (see People v Kolupa, 13 NY3d 786, 787 [2009]).
Footnote 2:Contrary to defendant's assertion,the People need not prove that the victim sustained a serious physical injury to support aconviction for attempted assault in the first degree (see People v Marshall, 162 AD3d 1110, 1114 [2018], lvdenied 31 NY3d 1150 [2018]; People v Alvarez, 38 AD3d 930, 934-935 [2007], lv denied8 NY3d 981 [2007]).