| People v Chappell |
| 2020 NY Slip Op 05978 [187 AD3d 1319] |
| October 22, 2020 |
| Appellate Division, Third Department |
[*1](October 22, 2020)
| The People of the State of New York,Respondent, v Nicholas J. Chappell, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered June 7, 2017, upon a verdict convicting defendant of the crimes of murder in the seconddegree, attempted murder in the second degree, assault in the first degree and criminal use of afirearm in the first degree.
Defendant was charged with murder in the second degree, attempted murder in the seconddegree, assault in the first degree and criminal use of a firearm in the first degree, all of whichstemmed from an incident on August 31, 2016 where he fatally shot victim A and woundedvictim B. Following a jury trial, defendant was convicted as charged and sentenced toconsecutive prison terms of 25 years to life for his conviction of murder in the second degree, 20years for his conviction of attempted murder in the second degree, to be followed by five years ofpostrelease supervision, and five years for his conviction of criminal use of a firearm in the firstdegree. He was also sentenced to a concurrent prison sentence of 20 years, to be followed by fiveyears of postrelease supervision, for his conviction of assault in the first degree. Defendantappeals.
Initially, contrary to defendant's contention, our independent review of the grand jury minutesreveals that County Court properly denied defendant's motion to dismiss the indictment (see People v Ferguson, 177 AD3d1247, 1249-1250 [2019]; People vSutherland, 104 AD3d 1064, 1066 [2013]). Defendant also argues that the verdict wasagainst the weight of the evidence because the People failed to prove beyond a reasonable doubtthat his actions were unjustified. "Given that another verdict would not have been unreasonable,we must weigh the relative probative force of conflicting testimony and the relative strength ofthe conflicting inferences that may be drawn from the testimony while viewing the evidence in aneutral light and giving deference to the jury's credibility assessments" (People v Williams, 161 AD3d1296, 1296 [2018] [internal quotation marks and citations omitted], lv denied 32NY3d 942 [2018]). As relevant here, "[a] person is guilty of murder in the second degree when. . . [w]ith intent to cause the death of another person, he [or she] causes the death ofsuch person" (Penal Law § 125.25 [1]). In turn, "[a] conviction for attemptedmurder in the second degree requires proof that, with intent to cause the death of another, thedefendant engaged in conduct that tended to effect the commission of that crime" (People v Greenfield, 167 AD3d1060, 1061 [2018], lv denied 32 NY3d 1204 [2019]; see Penal Law§§ 110.00, 125.25 [1]). A conviction for assault in the first degree requiresproof that, "[w]ith intent to cause serious physical injury to another person, [the defendant]causes such injury . . . by means of a deadly weapon or a dangerous instrument"(Penal Law § 120.10 [1]). Finally, a person commits criminal use of a firearm in thefirst degree when he or she commits attempted murder in the second degree or assault in the firstdegree and he or she "possesses a deadly weapon, if the weapon is a loaded weapon from which ashot, readily capable of producing death or other serious injury may be discharged" (Penal Law§ 265.09 [1] [a]; see § 70.02 [1] [a]).
As to the defense of justification for the use of deadly force to prevent or terminate aburglary, use of deadly physical force is permitted where "[a] person in possession or control of. . . a dwelling . . . reasonably believes that another person iscommitting or attempting to commit a burglary of such dwelling . . . [and] he or shereasonably believes such [force] to be necessary to prevent or terminate the commission orattempted commission of such burglary" (Penal Law § 35.20 [3]; see People v Simmons, 111 AD3d975, 978 [2013], lv denied 22 NY3d 1203 [2014]). "This inquiry involves asubjective and objective element, i.e., it focuses on the defendant and the circumstances he or sheconfronted at the time of the [incident], as well as what a reasonable person in thosecircumstances and having [the] defendant's background and experiences would conclude"(People v Simmons, 111 AD3d at 978 [internal quotation marks and citations omitted];see People v Wesley, 76 NY2d 555, 559 [1990]). "[W]henever justification is sufficientlyinterposed by [a] defendant, the People must prove its absence to the same degree as any elementof the crime charged" (People v McManus, 67 NY2d 541, 546-547 [1986]; seePenal Law § 25.00 [1]; People v Williams, 161 AD3d at 1297).
It is undisputed that defendant, with a loaded shotgun, shot and killed victim A and seriouslyinjured victim B. Defendant testified that he has known victim B for approximately six years andthat victim B was previously defendant's roommate. Defendant testified that one of his siblingswas violently murdered in 2009, he was the victim of a robbery in 2010 and that severalburglaries occurred in his neighborhood in recent years. He implied that these things affected hisjudgment and played into his mind-set on the day of the incident. Defendant also testified that heis legally blind in his right eye and has "pretty poor" vision in his left eye.[FN1] He explained that he wearscontacts or glasses to correct the vision in his left eye,[FN2] but that the vision in his right eye is notcorrectable. Defendant testified that, despite his poor vision, he has a learner's permit to drive avehicle. Defendant also testified that, at the time of the incident, he lived in an apartment on thefirst floor of a building and that there was one other apartment located upstairs. Defendantexplained that there is a porch in front of the building and that when you enter the front doorthere is a foyer area with a closet directly across from the front door. There is a security keypadon the front door that requires a code to unlock the door. Photographs admitted into evidenceillustrated that the door to defendant's apartment is located to the right of the closet. To the left,there is a flight of stairs leading up to the second-floor apartment. Approximately halfway up thestairs, there is a landing and then more stairs. There is a window in the first part of the stairwell.There are multiple doors at the top of the stairs, one to the second-floor apartment, another to anoutdoor porch and the last goes to an attic.
Defendant explained that, on the day of the incident, he did not expect anyone to come to hisapartment and that no one rang the doorbell. Defendant stated that he was in his dining roomwhen he heard someone try to operate the security keypad on the front door multiple times untilthe door unlocked. Defendant testified that he called out to the perpetrator but received noresponse, which made him suspicious that a burglary was taking place. Not knowing where heplaced his phone, defendant retrieved his loaded shotgun and announced that he was armed.Defendant approached his unlocked apartment door to lock it when the handle jiggled, and thedoor abruptly opened to reveal a "tall person" that defendant had never seen before. Defendanttestified that the person approached him "very aggressively," prompting defendant to fire towardsthe perpetrator, who then fell out the front door. Defendant testified that he then went up a flightof stairs outside of his apartment to gain a better vantage point by peering out a window. At thispoint in time, he saw a second perpetrator, whom he did not know, at the top of the stairs who hebelieved to be a part of the burglary. Defendant testified that he fired his shotgun towards thesecond perpetrator who approached him "very aggressively."[FN3] Defendant testified that the perpetrator lungedat him, tackled and choked him and that the pair struggled when a knife, that defendant did notrecognize nor did he believe to have fallen from his person, dropped to the ground. Theperpetrator choked defendant until he lost consciousness. On cross-examination, it was revealedthat, the day of the incident, defendant possessed a note in his pocket that read, "kill a man" and"body hacking." Defendant could not remember what the note was referencing.
Victim B, and other witnesses for the People, described a different version of events. VictimB testified that he rented a room from defendant and that, approximately a month before theincident when he was moving out, he discovered that the rent money that he had been paying todefendant was not being delivered to the landlord. According to victim B, he left some personalitems behind. Victim B testified that, a month before the incident, he went to defendant'sapartment to retrieve his possessions and mail but left without them because defendant made himfeel uncomfortable. According to victim B, defendant texted him a few days before the incidentthreatening to throw out victim B's possessions and mail and threatening to show up at hisworkplace if victim B did not pick up his possessions by September 1, 2016. Victim B accuseddefendant of stealing his rent money and refused to pick up his belongings.[FN4] However, victim B testified that,on August 31, 2016, he and victim A went to defendant's apartment to pick up victim B'sthings.
Victim B further testified that, upon arriving at defendant's apartment and finding that hismail was not in the mailbox or on the front porch, he knocked on the front door twice rather thanusing the security keypad because he believed that defendant had changed the security code.Victim B stated that he could hear movement from inside the apartment and observed defendantopen and look out of a window right near the front door multiple times. Victim B testified that hethen asked defendant, both verbally and by text message,[FN5] whether he should go to the front or back door.A little bit later, victim B heard defendant open his apartment door and go up and down thestairwell. Defendant then opened the door to where the victims were standing, on the other sideof a screen door. Victim B testified that he opened the screen door and defendant asked whetherhe had gotten his things, to which victim B responded that he had not. Defendant informedvictim B that his things were in the stairwell, at which time victim B passed by defendant andwalked up the stairs. Victim B observed some of his belongings and, when he turned around toask defendant where his mail was, he saw defendant pointing a shotgun at victim A's head. Hethen saw defendant pull the trigger and victim A fell. Defendant then turned around to come atvictim B onto the stairs, with the shotgun still in his hand, and victim B ran further up the stairs.As defendant began walking up the stairs, he said to victim B, "you f***ed with the wrongpussy."[FN6] Defendantfired two shots at victim B, the first missed and the second hit victim B in his left arm.[FN7] Victim B fell against defendant,the pair fell down the stairs and were wrestling around on the floor when a knife, that victim Bbelieved was his, fell out of defendant's pants. Victim B testified that, using his uninjured arm, hechoked defendant until police arrived.
A handyman, who was sitting in his truck across the street from defendant's apartment,testified that he observed the victims approach defendant's residence on the day of the incident.The handyman largely corroborated victim B's testimony, including that victim B knocked twiceon the front door and that, when the victims entered, victim A was shot in the head. Thehandyman also testified that at least three shots were fired. The handyman called 911 and thenapproached the apartment, at which time he observed victim B kick away a gun that he inferredbelonged to defendant, as he did not see either of the victims carrying a gun when theyapproached the residence. Kyle Kemak, an investigator who conducted a mobile phone forensicexamination on defendant's phone, corroborated victim B's testimony regarding a "heated" textmessage exchanged between defendant and victim B regarding victim B's possessions. Kemakadditionally testified that, five days before the incident, defendant texted his sister that he would"cut [victim B's] head off." Anthony Diles, a detective sergeant, testified regarding twointerviews that he had conducted of defendant at the hospital the day of the incident. During oneof those interviews, defendant stated that he was in his dining room when the perpetratorsentered his apartment and that he was in his living room when he fired at them. Diles furthertestified that defendant never mentioned his abysmal eyesight during either of the interviews.Dianne Vertes, a consultant forensic pathologist, testified that she conducted the autopsy ofvictim A. The autopsy revealed that he had one gunshot wound to the head and that there wassoot above the entrance wound, which is indicative of a close-range firing.
Defendant's contention that the People failed to prove beyond a reasonable doubt that hisactions were unjustified is unavailing. The record reveals that the issue of justification wasalmost entirely based on credibility, and the jury evidently discredited defendant's version ofevents, to which this Court must accord appropriate deference (see People v Harris, 186 AD3d907, 910 [2020]; People vEvery, 146 AD3d 1157, 1162 [2017], affd 29 NY3d 1103 [2017]). For instance,defendant's contention that he retrieved his shotgun because he could not locate his cell phone tocall 911 at the time of the shooting is belied by an investigator's testimony that defendant's cellphone was recovered from shorts that defendant was wearing at the time of the incident. Physicalevidence, including the location of victim A's body on the porch and brain matter located onvictim B's vehicle, which was parked in the street in front of defendant's apartment, furthercontradict defendant's account that he shot victim A after victim A entered his apartment andapproached him aggressively. Furthermore, even if defendant's eyesight prevented him fromidentifying the victims, the jury could have reasonably concluded that the force that defendantused upon the unarmed victims was unjustified (see People v Every, 146 AD3d at 1162;People v Ramsay, 199 AD2d 428, 428-429 [1993], lv denied 83 NY2d 857[1994]). Thus, both the verdict and the jury's rejection of defendant's justification defense wassupported by the weight of the evidence (see People v Mamadou, 172 AD3d 1524, 1526 [2019], lvdenied 33 NY3d 1106 [2019]; People v Fisher, 89 AD3d 1135, 1138 [2011], lv denied 18NY3d 883 [2012]).
Defendant also contends that County Court committed reversible error in makingunauthorized annotations to the verdict sheet. "CPL 310.20 (2) allows the trial court, whensubmitting two or more counts charging offenses from the same article of law, to set forth thedates, names of complainants or specific statutory language, without defining the terms, by whichthe counts may be distinguished. Absent a defendant's consent, any other notations on the verdictsheet offend the letter of the law" (People v McCloud, 121 AD3d 1286, 1289-1290 [2014] [internalquotation marks and citations omitted], lv denied 25 NY3d 1167 [2015]; see CPL310.20 [2]). "Although generally the lack of an objection to the annotated verdict sheet bydefense counsel cannot be transmuted into consent, it is well settled that consent to thesubmission of an annotated verdict sheet may be implied where defense counsel fails to object tothe verdict sheet after having an opportunity to review it" (People v Johnson, 96 AD3d 1586, 1587 [2012] [internal quotationsmarks and citations omitted], lv denied 19 NY3d 1027 [2012]; see People v Bjork, 105 AD3d1258, 1264 [2013], lv denied 21 NY3d 1040 [2013], cert denied 571 US1213 [2014]).
Here, the record reveals that County Court made notations on the verdict sheet under eachcount, which included statutory language as well as the victims' names and the date of theoffenses. The court advised the jury of the general nature of these notations and that they were forthe "sole purpose" of distinguishing between the counts and that the notations were not "asubstitute" for the court's full instructions on meeting the elements of each charge. Inasmuch ascounts 1 and 2 charged offenses under the same Penal Law article,[FN8] County Court's notations were authorized byCPL 310.20 (2); however, the notations as to counts 3 and 4 were not (see People vMcCloud, 121 AD3d at 1290).[FN9] Accordingly, defendant's consent was required.To that end, at the conclusion of the court's instructions to the jury, including an explanation ofthe annotations on the verdict sheet, the court explicitly asked the People and defense counsel ifthey had any additional requests or exceptions to the charge. Defense counsel answered in thenegative. If it were apparent from the record that defendant had had an opportunity to review theverdict sheet, we would find that defense counsel's conduct constituted implied consent to theunauthorized annotations (see People v McCloud, 121 AD3d at 1290; People v Washington, 9 AD3d499, 500-501 [2004], lv denied 3 NY3d 682 [2004]; People v Gerstner, 270AD2d 837, 837 [2000]). However, we cannot determine from the record whether defendant hadan opportunity to review the verdict sheet because the charge conference was held off the recordin County Court's chambers. Thus, we must reserve decision on this issue, as well as the otherissues raised by defendant, and remit the matter to County Court for a reconstruction hearing todetermine whether defense counsel had the opportunity to review the annotated verdict sheet (see People v Johnson, 88 AD3d1293, 1295 [2011]; see generallyPeople v Bowman, 137 AD3d 1484, 1485 [2016]).
Egan Jr., J.P., Mulvey, Aarons and Colangelo, JJ., concur. Ordered that the decision iswithheld, and matter remitted to the County Court of Broome County for further proceedings notinconsistent with this Court's decision.
Footnote 1:An optometrist who examineddefendant's eyes three years prior to the trial testified that defendant's eyesight was severelyimpacted to a point where his uncorrected vision in the right eye was 5/250 and left eye was5/100.
Footnote 2:It is unclear from defendant'stestimony whether he was wearing his contacts or glasses at the time of the shooting.
Footnote 3:Defendant testified that he onlyfired two shots, one at each victim.
Footnote 4:During cross-examination,victim B testified that two days before the incident, he texted defendant to inform him that hewas not going to go over to defendant's apartment to pick up his possessions.
Footnote 5:This testimony was corroboratedby Kyle Kemak, an investigator who conducted a mobile phone forensic examination ondefendant's phone. Kemak also testified that defendant may not have received that message.
Footnote 6:On cross-examination, victim Badmitted that, while he and victim A were waiting for defendant to come to the door, victim Acalled defendant a "pussy."
Footnote 7:Victim B testified that, after hewas shot, his arm was "dangling" from the elbow and he has had approximately 10 surgeries toreconstruct his arm.
Footnote 8:Count 1 charged defendant withmurder in the second degree pursuant to Penal Law § 125.25 and count 2 chargeddefendant with attempted murder in the second degree pursuant to Penal Law§§ 110.00 and 125.25.
Footnote 9:Count 3 charged defendant withassault in the first degree pursuant to Penal Law § 120.10 and count 4 chargedcriminal use of a dangerous weapon in the first degree pursuant to Penal Law§ 265.09.