| People v Lee |
| 2020 NY Slip Op 03049 [183 AD3d 1183] |
| May 28, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andre D. Lee, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
Palmer J. Pelella, Special Prosecutor, Owego, for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Broome County (CawleyJr., J)., rendered February 21, 2017, upon a verdict convicting defendant of the crimes ofmurder in the second degree, assault in the second degree, criminal possession of aweapon in the second degree (two counts) and criminal possession of a weapon in thethird degree.
On July 4, 2014, defendant hit Seth West in the head with a liquor bottle and, shortlythereafter, shot Scott Wright in the abdomen, causing Wright's death. He was chargedwith murder in the second degree, assault in the second degree, criminal possession of aweapon in the second degree (two counts) and criminal possession of a weapon in thethird degree. Following a jury trial, he was convicted as charged and sentenced toconsecutive prison terms of 25 years to life on the murder conviction and two years onthe assault conviction, followed by three years of postrelease supervision, and to lesserconcurrent terms on the remaining convictions. Defendant appeals.
Defendant contends that the evidence was legally insufficient to establish his intentto cause Wright's death as an element of his conviction for murder in the second degree,and his intent to use a firearm unlawfully against Wright as an element of his convictionfor criminal possession of a weapon in the second degree. He further contends that hisconvictions on these counts are against the weight of the evidence because the People didnot establish that he intended to shoot Wright and did not prove that defendant's weapondid not discharge accidentally.
The People's witnesses included numerous individuals who attended a communityIndependence Day celebration in the parking lot of an apartment complex in the City ofBinghamton, Broome County. Their testimony established that the party was uneventfuluntil defendant and several acquaintances began teasing one another, in what wasinitially a good-natured way, about T-shirts that defendant and others were wearing.However, the tone of the encounter changed when West, whom defendant did not know,joined in the teasing. Defendant, who had been drinking throughout the party from aliquor bottle that he was carrying, took offense at something West said. The two arguedand defendant told West to leave, but West refused to do so. A few minutes later, whileWest was watching fireworks, defendant struck West in the side of the head with theliquor bottle, which broke, partially severing West's ear. West and defendant then had afistfight. Other attendees separated them, and West and several other guests went into anearby apartment to tend to West's ear.[FN1] Defendant left the party saying,according to some witnesses, that he would be back.
A few minutes later, defendant returned, wearing a different shirt. He asked a groupof partygoers—who included Brian Alexander, Alexander's sister and Wright'ssister—whether anyone "ha[d] a problem with what just happened." Alexanderresponded that he did have a problem with it. Defendant then pulled a gun out of hispants, cocked it and pointed it steadily at Alexander. According to several witnesses,defendant then told Alexander that he would not shoot him, since they were friends; onewitness said that defendant said that Alexander's sister was "lucky [defendant] liked [her]brother." Some witnesses testified that they were not afraid because they did not thinkdefendant would shoot anyone, while other witnesses ran away or hid behind nearbycars. After defendant told Alexander that he would not shoot him, Alexander went intothe nearby apartment where West had gone.
When Wright, who was inside the apartment, learned that defendant was displaying agun, he became concerned about his sister and went outside to check on her.[FN2] Defendant was standingnear the outer door, at the bottom of a short flight of steps. After Wright stepped outside,defendant shot him, striking him in the abdomen. There was conflict in the testimony asto the exact sequence of events. Witnesses agreed that Wright had nothing in his hands,was not moving fast and had not yet started down the steps when defendant shot him.However, some guests said that defendant acted almost immediately and that neither henor Wright spoke, while others said that the two appeared to have a brief conversation,although these witnesses could not hear what was said. Two witnesses said thatdefendant said, "What?" to Wright just before shooting him. One witness said thatdefendant said, "So you want to be the tough one," pointed the gun at Wright, cocked itand shot him. Another witness said that defendant turned to Wright as he came out thedoor and said, "Oh, you want to be the tough guy," that Wright said, "Wait, what?" andthat defendant then pulled something out of his pocket, whereupon this witness heard a"big boom" and Wright fell to the ground. This witness said that defendant then said,"See, I told you," before turning around and walking away. Defendant then left the scene;Wright died in the hospital three days later.
A friend of defendant's girlfriend testified that she saw defendant at the girlfriend'shouse later that evening, mumbling, pacing back and forth and seeming to be upset. Atdefendant's request, the friend drove defendant to his mother's house nearby, but whendefendant saw police cars around the mother's home, he asked the friend to take himback to the girlfriend's home, which she did.
The next morning, police officers searched the girlfriend's home and found defendanthiding in the attic. A search of his mother's home disclosed ammunition in a closet.During an interview with police, defendant acknowledged that he had struck West withthe bottle and had argued with Alexander, but initially denied having any involvementwith a gun, claiming only that he had heard a gunshot. After several hours, policeallowed defendant to speak with his girlfriend. Thereafter, he admitted that he had shotWright, but claimed that he had not intended to do so, that he returned to the party anddisplayed the gun only because he wanted a chance for a fair fight, and that the gundischarged accidentally. Defendant directed police to a wooded area where he had hiddenthe loaded gun and the clothing that he had worn to the party. The gun was test-fired andproved to be operable. Defendant's grand jury testimony was read into evidence at thetrial, in which he testified, among other things, that he believed that Alexander had goneinto the apartment to summon someone else to fight with him, and repeated his claim thatthe shooting was accidental.
Following the close of the People's proof, defendant's mother testified on defendant'sbehalf, saying that defendant had come to her house after she went to bed that eveningand that he had gone to a hallway closet where he kept some belongings, changed hisshirt and shoes and had then gone out again. She stated that she knew that defendant hada gun and had directed him to remove it from her house, but that she did not know thatthere was ammunition in the closet.
Defendant testified that he had drunk a third of a bottle of liquor by the earlyafternoon of the day of the shooting, that he continued to drink heavily throughout theparty and that he also smoked synthetic marihuana. He acknowledged that he becameangry when West "mock[ed]" him and that he struck West with the liquor bottle. He saidthat he was angry that other guests did not try to break up the fight when West waswinning, but did break it up when defendant was winning, and that he believed that hehad been prevented from having a "fair fight" with West. Defendant denied that he hadgone to his mother's house to get his gun, claiming that he had been carrying the gun inhis pants pocket throughout the day. He stated that he went to his mother's house tochange his shirt and shoes, because his shirt had been torn during the fight and he did notwant his good sneakers to be damaged. Defendant said that he had no intention ofshooting anyone when he returned to the party, claiming that he waved the gun aroundbecause he wanted someone to give him another opportunity to fight. He stated that heand Wright did not exchange any words after Wright emerged from the door, thatdefendant did not intend to shoot Wright and that "the gun went off" unexpectedly in hishand.
Defendant claimed that he was "[n]ot too familiar" with guns, that he had bought thegun a few weeks before for self-protection after giving information to the prosecution inan unrelated murder case, and that he had fired it only once before, aiming into the airwhen he was "drunk" and "acting stupid." However, he acknowledged that he wasfamiliar with how the trigger and the safeties worked, that he knew the gun was loaded,that he had cocked the gun, putting a live round into it, and that his finger was on thetrigger when the gun discharged.
Viewing this evidence in the light most favorable to the People, and given that intentmay be inferred from a defendant's actions (see People v Stover, 178 AD3d 1138, 1143 [2019], lvdenied 34 NY3d 1163 [2020]), we find that there is a valid line of reasoning andpermissible inferences from which a rational jury could conclude that defendantpossessed the requisite intent to shoot and kill Wright and to use the gun unlawfully(see Penal Law §§ 125.25 [1]; 265.03 [1] [b]; People vStover, 178 AD3d at 1143; People v Reese, 166 AD3d 1057, 1060 [2018], lvdenied 33 NY3d 953 [2019]). As for defendant's weight of the evidence claim, adifferent verdict would not have been unreasonable if the jury had credited defendant'stestimony that the gun discharged accidentally. Thus, we must "weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d490, 495 [1987] [internal quotation marks and citation omitted]). Resolution of theconflicting testimony was within the jury's province, and deferring to these assessmentsand viewing the evidence in a neutral light, we find that the verdict is not against theweight of the evidence (see People v Stover, 178 AD3d at 1144; People v King, 124 AD3d1064, 1065-1066 [2015], lv denied 25 NY3d 1073 [2015]; People vSiler, 288 AD2d 625, 627 [2001], lv denied 97 NY2d 709 [2002]).
Defendant next contends that he was deprived of a fair trial on the charge of murderin the second degree when County Court gave the jury an improper supplementalinstruction in response to jury inquiries about the element of intent. "[C]ommon-lawprinciples of procedural fairness generally require the court to furnish the jury withinformation requested during its deliberations" (People v Taylor, 26 NY3d 217, 224 [2015]), and a trialcourt further has a statutory obligation to respond to jury requests for clarification made"[a]t any time during [the jury's] deliberation" (CPL 310.30). In response to such aninquiry, the court "must perform the delicate operation of fashioning a response whichmeaningfully answers the jury's inquiry while at the same time working no prejudice tothe defendant" (People v Williamson, 267 AD2d 487, 489 [1999], lvdenied 94 NY2d 886 [2000]; accord People v Miller, 288 AD2d 698, 700[2001]; see People v Santi,3 NY3d 234, 248 [2004]; People v Rawlinson, 170 AD3d 1425, 1429 [2019], lvdenied 33 NY3d 1107 [2019]). "[T]he court has significant discretion in determiningthe proper scope and nature of the response" (People v Taylor, 26 NY3d at 224).In analyzing whether that discretion was abused, "[t]he factors to be evaluated are theform of the jury's question, which may have to be clarified before it can be answered, theparticular issue of which inquiry is made, the supplemental instruction actually given andthe presence or absence of prejudice to the defendant" (People v Malloy, 55NY2d 296, 302 [1982], cert denied 459 US 847 [1982]; accord People vTaylor, 26 NY3d at 224; seePeople v Wilson, 90 AD3d 1155, 1156-1157 [2011], lv denied 18 NY3d963 [2012]).
During deliberations, the jury sent a note requesting, as pertinent here, the"[d]efinition of intent in most layman's terms possible" and asking, "Is the second degreemurder charge specific to the killing of Scott Wright or shooting anyone?" County Courtreread the expanded instruction on intent that it had previously given and advised thejury that the murder charge was "specific to the killing of Scott Wright." Thereafter, thejury sent a second note reading, "Can we convict if there was intent to kill another?"Defense counsel and the prosecutor initially opined that the answer should be in thenegative, but the court stated that it was not certain. Following a recess for research and adiscussion with counsel off the record, the court stated that it could not determinewhether the jury was asking about the pleadings, transferred intent or mistake of fact.With counsel's agreement, the court asked the jury to provide clarification.
In response to this request, the jury sent a note reading, "The question regardingintent goes to the specific question that Scott Wright was shot—is the murdercharge specific to the idea or fact that defendant specifically shot at [Wright] or does theintent go to the fact that he intentionally fired the gun at whoever happened to walk outthe door?" After further research and discussion, defense counsel took the position that,because the indictment charged that defendant acted with the intent to cause the death ofWright, the jury should be instructed that it had to determine whether defendantspecifically intended to shoot Wright and could not consider whether he intended "to justshoot the next person who walked out the door." The prosecutor disagreed, arguing thatthe People were not bound by the language of the indictment because the identity of thevictim was not an element of second degree murder. Over defense counsel's objection,County Court then advised the jury that the answer to its question whether the murdercharge was specific to the idea that defendant "specifically shot at [Wright]" was no, andthat the answer to its question whether intent could apply to intentionally firing at theperson who happened to walk out the door was yes. The court then gave the jury thedefinition of murder in the second degree as set out in Penal Law § 125.25(1), read to the jury language from Penal Law § 15.20 (1) providing that"[a] person is not relieved of criminal liability for conduct because he engages in suchconduct under a mistaken belief of fact" and, finally, advised the jury that if it "[found]unanimously that the People [had] proven beyond a reasonable doubt that the defendantintended to cause the death—again, that the defendant intended to cause thedeath—of another person, and by that intentional conduct he caused the death [of]Scott Wright, that would be a sufficient finding to warrant a verdict of guilty."[FN3] The jury resumed itsdeliberations and, less than an hour later, returned its verdict of guilty on all counts.
We reject defendant's contention that the supplemental instruction impermissiblyaltered the theory of the prosecution. As defendant argues, "a jury charge may notconstructively amend an indictment by varying the theory of the prosecution" (People v Ardrey, 92 AD3d967, 970-971 [2012], lv denied 19 NY3d 861 [2012]). "However, not everyfact mentioned in an indictment is essential to establish the defendant's guilt of the crimecharged, and thus it is not necessary in every case that the People prove all acts alleged inthe indictment when the remaining acts alleged are sufficient to sustain a conviction"(People v Spratley, 144 AD2d 769, 771 [1988] [internal quotation marks,brackets, emphasis and citations omitted], lv denied 73 NY2d 896 [1989];accord People v Buanno, 296 AD2d 600, 601 [2002], lv denied 98 NY2d695 [2002]; see People vFlanders, 25 NY3d 997, 999 [2015]; People v Charles, 61 NY2d 321,327 [1984]). Significantly, the identity of the victim is not one of the elements of thecrime of murder in the second degree (see Penal Law § 125.25 [1];People v Stanley, 23 AD3d683, 684-685 [2005], lv denied 6 NY3d 818 [2006]; see also People v Jones, 41AD3d 507, 508 [2007], lv denied 9 NY3d 877 [2007]). Here, the Peoplechose to go beyond the elements that they were required to prove to obtain a convictionboth by asserting in the indictment that defendant specifically intended to shoot Wrightand by making that argument at trial. Nonetheless, the jury was not required to acceptthis part of the People's theory to convict defendant of murder in the second degree, solong as it found that the People had proven the elements of that crime beyond areasonable doubt. Accordingly, we find that the instruction did not alter the prosecution'stheory (see People v Charles, 61 NY2d at 327-329; People v Osinowo, 28 AD3d1011, 1012-1013 [2006], lv denied 7 NY3d 792 [2006]; see also Peoplev Flanders, 25 NY3d at 999; People v Treuber, 64 NY2d 817, 818 [1985];compare People v Barnes, 50 NY2d 375, 379 n 3 [1980]).
For similar reasons, we reject defendant's contention that County Court'ssupplemental instruction prejudiced defendant by introducing the new legal principle ofmistake of fact. As defendant argues, the People made no arguments based on thatprinciple during the trial. However, defendant's theory of defense throughout the trialwas that the gun went off accidentally and that defendant did not intend to shoot Wrightor anyone else. This defense of accident would not have been altered or affectedif the question whether defendant mistook Wright for someone else had been raisedearlier; as previously noted, the identity of the victim is not an element of the crime ofmurder in the second degree. Thus, defendant was not prejudiced by the supplementalinstruction, which was responsive to a reasonable interpretation of the jury's inquiry anddid not foreclose its consideration of the element of intent (compare People v Wood, 163AD3d 1485, 1488 [2018], lv denied 32 NY3d 1069 [2018]). Considering thetotality of the circumstances (see People v Taylor, 26 NY3d at 227), we find thatthe supplemental instruction satisfied the court's obligation to fashion a meaningfulresponse to the jury's request without causing prejudice to defendant (see People vAlmodovar, 62 NY2d 126, 131-132 [1984]; People v Rawlinson, 170 AD3dat 1429; People v Roberts, 204 AD2d 974, 974-975 [1994], lv denied 84NY2d 871 [1994]).
Finally, defendant contends that his sentence is harsh and excessive in view of hislimited criminal history and his expressions of remorse. In view of the violent nature ofdefendant's conduct and its devastating impact on Wright's family and friends, we find noextraordinary circumstances or abuse of discretion warranting a reduction in the sentence(see People v Guzy, 167AD3d 1230, 1238 [2018], lv denied 33 NY3d 948 [2019]; People v Stanford, 130 AD3d1306, 1310 [2015], lv denied 26 NY3d 1043 [2015]).
Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:The injury was latertreated at a hospital, where West received stitches.
Footnote 2:The testimony was inconflict as to whether Wright had previously remained in the apartment throughout theencounter between West and defendant. Some witnesses testified that Wright had comeoutside briefly, either while West and defendant were fighting or immediately afterwards,that he had been upset about the fight and that he had then gone back indoors, whileothers testified that he did not leave the apartment until he came out to check on hissister.
Footnote 3:Outside the jury'spresence and before giving this instruction, County Court advised counsel that it did notbelieve that the jury's question involved transferred intent and that it further did notbelieve that its supplemental instruction altered the theory of the prosecution.