PEOPLE v. GARRISON (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[2] [depraved indifference] ), attempted murder in the second degree (§§ 110.00, 125.25[1] [intentional murder] ), and assault in the first degree (§ 120.10 [1] ).   The conviction arises out of defendant's participation in an incident wherein a series of shots were fired at one victim, who died, and then additional shots were fired at a second victim.   We agree with defendant that the conviction of depraved indifference murder must be set aside as unsupported by legally sufficient evidence of recklessness and depraved indifference.   Although defendant failed to preserve his contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Packer, 31 A.D.3d 1169, 1170, 817 N.Y.S.2d 829, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145).   Here, the trial evidence establishes defendant's use of a weapon with a “manifest intent to kill” the victim, thus negating the essential elements of recklessness and depraved indifference and rendering the evidence legally insufficient to support a conviction of depraved indifference murder (People v. Payne, 3 N.Y.3d 266, 271, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975;  see People v. Suarez, 6 N.Y.3d 202, 208-216, 811 N.Y.S.2d 267, 844 N.E.2d 721;  People v. Gonzalez, 1 N.Y.3d 464, 466-468, 775 N.Y.S.2d 224, 807 N.E.2d 273).   It is “obvious that the more the defendant shoots ․ the victim, the more clearly intentional is the homicide,” and the less “indifferent” it is (Payne, 3 N.Y.3d at 272, 786 N.Y.S.2d 116, 819 N.E.2d 634;  see generally Suarez, 6 N.Y.3d at 208-210, 811 N.Y.S.2d 267, 844 N.E.2d 721;  Gonzalez, 1 N.Y.3d at 467-469, 775 N.Y.S.2d 224, 807 N.E.2d 273).   Further, the Court of Appeals has stated that a “one-on-one” shooting, as was the case here, can “almost never” qualify as depraved indifference murder (Payne, 3 N.Y.3d at 272, 786 N.Y.S.2d 116, 819 N.E.2d 634).   We therefore modify the judgment by reversing that part convicting defendant of murder in the second degree and dismissing count two of the indictment (see id. at 273, 786 N.Y.S.2d 116, 819 N.E.2d 634;  People v. Gonzalez, 302 A.D.2d 870, 872, 755 N.Y.S.2d 146, affd. 1 N.Y.3d 464, 469, 775 N.Y.S.2d 224, 807 N.E.2d 273;  People v. Hawthorne, 35 A.D.3d 499, 501, 826 N.Y.S.2d 147;  People v. Rodriguez, 34 A.D.3d 1181, 1182, 824 N.Y.S.2d 536;  see also CPL 470.15[2][b];  470.20 [2], [3];  see generally People v. McMillon, 31 A.D.3d 136, 140, 816 N.Y.S.2d 167, lv. denied 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806).

 In view of our determination, we need not address the contention of defendant that the verdict finding him guilty of depraved indifference murder is against the weight of the evidence on the elements of recklessness and depraved indifference (see People v. Lawhorn, 21 A.D.3d 1289, 1291, 804 N.Y.S.2d 517).   We conclude, however, that the evidence is legally sufficient to establish defendant's identity as one of the shooters (see People v. Little, 23 A.D.3d 1117, 1118, 807 N.Y.S.2d 756, lv. denied 6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799;  People v. Quinney, 305 A.D.2d 1044, 760 N.Y.S.2d 786, lv. denied 100 N.Y.2d 586, 764 N.Y.S.2d 396, 796 N.E.2d 488;  People v. Spirles, 294 A.D.2d 810, 810-811, 742 N.Y.S.2d 457, lv. denied 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562, 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579), and that the verdict is not against the weight of the evidence with respect to the issue of identification (see People v. Coleman, 32 A.D.3d 1239, 821 N.Y.S.2d 316;  Quinney, 305 A.D.2d at 1044, 760 N.Y.S.2d 786;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Contrary to the contention of defendant, Supreme Court did not err in admitting the out-of-court declarations of the complainant as excited utterances (see generally People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402;  People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328;  People v. Brown, 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515;  People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229).   Nor was defendant denied effective assistance of counsel.   The evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see generally People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We likewise reject defendant's contention that the sentence is unduly harsh or severe and, in view of our determination, we do not address defendant's remaining contention.

Finally, we note that the certificate of conviction incorrectly reflects that defendant was convicted of attempted murder in the second degree under Penal Law §§ 110.00 and 125.25(2), and it must therefore be amended to reflect that he was convicted under Penal Law §§ 110.00 and 125.25(1) (see People v. Saxton, 32 A.D.3d 1286, 821 N.Y.S.2d 353;  People v. Benson, 265 A.D.2d 814, 816, 697 N.Y.S.2d 222, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097, cert. denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of murder in the second degree and dismissing count two of the indictment and as modified the judgment is affirmed.

We respectfully dissent in part because we cannot agree with the majority that the judgment should be modified by reversing that part convicting defendant of depraved indifference murder (Penal Law § 125.25[2] ).   The majority correctly acknowledges that defendant failed to preserve for our review his contention that the evidence with respect to the issues of recklessness and depraved indifference is legally insufficient to support the conviction of that crime and, unlike the majority, we see no reason to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  see e.g. People v. Robinson, 21 A.D.3d 1413, 801 N.Y.S.2d 449, lv. denied 5 N.Y.3d 885, 808 N.Y.S.2d 587, 842 N.E.2d 485;  People v. Grant, 17 A.D.3d 695, 792 N.Y.S.2d 921, lv. denied 5 N.Y.3d 762, 801 N.Y.S.2d 257, 834 N.E.2d 1267;  People v. Gutierrez, 15 A.D.3d 502, 790 N.Y.S.2d 493, lv. denied 5 N.Y.3d 763, 801 N.Y.S.2d 257, 834 N.E.2d 1267).

In our view, there is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and “as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “The standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 [emphasis in original];  see People v. Taylor, 94 N.Y.2d 910, 911, 707 N.Y.S.2d 618, 729 N.E.2d 337;  People v. Cabey, 85 N.Y.2d 417, 420-421, 626 N.Y.S.2d 20, 649 N.E.2d 1164).

The record before us establishes that decedent's death was caused by a gunshot to the head, fired at close range.   The shooting took place in the small, enclosed foyer of a house, and five or six people were located in proximity to defendant at that time.   There is no indication that defendant had any animosity toward decedent or any other motive to cause his death.   Defendant, decedent and the other victim were together in the kitchen of the house for a period of time.   No words were exchanged and there were no threatening gestures or other indications of hostility.   After they had been in the kitchen for approximately five minutes, defendant and two of his associates moved to the foyer, where they spoke with a fourth man near the front door that opened into the foyer.   The victims began to leave the residence through that door rather than exiting through the kitchen, thus circumstantially establishing that decedent had no unsettled quarrels with defendant.   At some point after the victims entered the foyer, still without any verbal exchanges among defendant, his associates or the victims, defendant apparently nudged decedent against a wall in the foyer, causing decedent to smile.   Without provocation, defendant raised a gun, which discharged, and the projectile struck decedent in the head.   Additional shots were fired during the ensuing melee, striking both victims.   Although the record is silent with respect to the origin of the other shots that struck decedent, the evidence establishes that at least one additional weapon was discharged during the incident.

Based on that evidence, the jury could reasonably have found that defendant did not intend to kill decedent, but that he acted with “ ‘an utter disregard for the value of human life-a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not’ ” (People v. Feingold, 7 N.Y.3d 288, 296, 819 N.Y.S.2d 691, 852 N.E.2d 1163).   The evidence establishes that defendant acted spontaneously, and there is no evidence of motive or prior negative contact between defendant and the victims (see People v. Campbell, 33 A.D.3d 716, 826 N.Y.S.2d 267).   In addition, in light of the confined quarters in the foyer and the number of people there, it was unquestionably reckless to brandish a loaded weapon.   Furthermore, given the absence of testimony that defendant said anything to decedent at the time of the shooting, or even that he was looking at decedent, there is no evidence of a manifest intent to kill decedent.

The contention of defendant that he must have intended to shoot decedent because decedent was shot in the head at point-blank range is without merit.   Indeed, we have previously upheld a depraved indifference murder conviction involving similar facts (see People v. Williams, 5 A.D.3d 1043, 1044, 773 N.Y.S.2d 696, lv. denied 2 N.Y.3d 809, 781 N.Y.S.2d 308, 814 N.E.2d 480), and the Third Department also has upheld such a conviction in a case involving a shooting at point-blank range, stating that, “[a]bsent a subjective intent to shoot to kill, the circumstances surrounding the shooting in this case evince a recklessness with a depraved indifference to human life” (People v. Thompson, 233 A.D.2d 755, 757, 650 N.Y.S.2d 825, lv. denied 89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997).

We cannot agree with the majority's conclusion that “the trial evidence establishes defendant's use of a weapon with a ‘manifest intent to kill’ the victim․” As previously noted, there is no evidence that would suggest that defendant had any reason or intent to kill decedent.   Significantly, the record is silent with respect to whether defendant fired the other two shots that struck decedent, and it is uncontroverted that at least one additional weapon was fired.   Thus, the jury could reasonably have found that defendant was only responsible for the first shot, thereby negating the multiple shot theory.

Although there is “a point at which the risk of death or risk of serious bodily injury approaches a certainty, and it defies logic to charge or to make a finding of depraved indifference,” this is not such a case (People v. Sanchez, 98 N.Y.2d 373, 393, 748 N.Y.S.2d 312, 777 N.E.2d 204).   Here, the issue whether defendant's conduct was reckless or intentional was for the jury to resolve, and we conclude that the evidence in this case supports a mens rea other than an intent to kill (see People v. Hall, 309 A.D.2d 511, 764 N.Y.S.2d 700, lv. denied 1 N.Y.3d 572, 775 N.Y.S.2d 789, 807 N.E.2d 902, 3 N.Y.3d 641, 782 N.Y.S.2d 412, 816 N.E.2d 202;  see generally People v. Caruso, 6 A.D.3d 980, 984, 776 N.Y.S.2d 337, lv. denied 3 N.Y.3d 704, 785 N.Y.S.2d 32, 818 N.E.2d 674).

In view of its decision, the majority did not address defendant's contention that the evidence before the grand jury was legally insufficient with respect to the depraved indifference murder count.   We conclude that defendant's contention is not properly before us on this “appeal from [a] judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30[6];  see People v. Taylor, 225 A.D.2d 640, 639 N.Y.S.2d 130, lv. denied 88 N.Y.2d 943, 647 N.Y.S.2d 176, 670 N.E.2d 460).

We further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, [we] must give ‘[g]reat deference ․ [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ ” (People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679, quoting Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Although we agree with defendant that a different finding would not have been unreasonable, we conclude upon weighing “ ‘the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” that the jury did not fail to give the evidence the weight it should be accorded (Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We agree with the majority's resolution of the remaining issues raised on appeal, and we therefore would affirm the judgment.

MEMORANDUM: