PEOPLE v. NARADZAY (2008)

On appeal from a judgment convicting him, upon a jury verdict, of two counts of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), and one count each of attempted burglary in the first degree (§§ 110.00, 140.30[1] ) and criminal possession of a weapon in the fourth degree (§ 265.01[2] ), defendant contends that the evidence is legally insufficient to support the conviction with respect to attempted murder and attempted burglary and that, instead, the evidence in support of those crimes was based on “pure conjecture.”  We reject that contention.

The People presented evidence at trial that defendant planned to kill a female acquaintance and her husband and that, when the police arrived at the scene in response to a 911 telephone call reporting that there was a man with a shotgun in a specified neighborhood, defendant approached the police and stated that he has “mental problems.”  When the police asked defendant if he had any weapons, he replied that he had a shotgun and pointed to it.  The shotgun was resting on a snowbank, about 5 to 10 feet away from where defendant was standing.  The police then handcuffed defendant, retrieved the weapon and determined that it was loaded with four rounds of ammunition.  The People further presented evidence that defendant told a newspaper reporter, after the fact, that his intention was to “slay the husband and wife and have their children watch.”  Furthermore, the police found on defendant's person a handwritten note, i.e., a “to-do list,” prepared by defendant.  The “to-do list” contained a step-by-step plan for breaking into the residence and killing the couple in front of their children.

 “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00).  It is well established that conduct tends to effect the commission of a crime when it brings the perpetrator “so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference” (People v. Rizzo, 246 N.Y. 334, 337, 158 N.E. 888;  see generally People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694, cert. denied 532 U.S. 1069, 121 S.Ct. 2224, 150 L.Ed.2d 216, rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773;  People v. Di Stefano, 38 N.Y.2d 640, 652, 382 N.Y.S.2d 5, 345 N.E.2d 548).  “It is difficult, if not impossible, to lay down any general rule by which it can be determined whether [conduct is] too remote to constitute an attempt to commit the offense” (People v. Sullivan, 173 N.Y. 122, 135, 65 N.E. 989).  Such a determination “depends greatly on the facts of the particular case” (People v. Mahboubian, 74 N.Y.2d 174, 190, 544 N.Y.S.2d 769, 543 N.E.2d 34).  The Court of Appeals has written that, although the act generally must go beyond “mere preparation” (People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094, rearg. denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194), “[t]he act need not be ‘the final one towards the completion of the offense’ ” (id., quoting Sullivan, 173 N.Y. at 133, 65 N.E. 989).

In support of his contention that the conviction of attempted burglary and attempted murder was based on conjecture rather than the requisite legally sufficient evidence, defendant relies upon a series of cases involving attempted murder in the first degree, wherein the defendants had pointed firearms at police officers (see People v. Acevedo, 256 A.D.2d 162, 683 N.Y.S.2d 499, lv. denied 93 N.Y.2d 921, 693 N.Y.S.2d 505, 715 N.E.2d 508;  People v. Chandler, 250 A.D.2d 410, 673 N.Y.S.2d 100;  People v. Mendez, 197 A.D.2d 485, 603 N.Y.S.2d 44, lv. denied 83 N.Y.2d 807, 611 N.Y.S.2d 143, 633 N.E.2d 498).  In those cases, it was determined that the conviction of attempted murder had to be supported both by evidence that the defendant aimed a loaded weapon at a police officer and by evidence that the defendant also “engaged in conduct consistent with shooting” the weapon, such as having a finger on the trigger (People v. Smith, 32 A.D.3d 1318, 1319, 821 N.Y.S.2d 723, lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000;  see Mendez, 197 A.D.2d at 485, 603 N.Y.S.2d 44).  Defendant's reliance on those cases thus is misplaced, because in those cases the intent to kill can only be inferred from the totality of the defendant's acts, which might otherwise be explained as being intended to enable the defendant to flee rather than to kill the officer.  The analysis of an attempt crime differs, however, when the defendant's “criminal intent is beyond peradventure” (People v. Trepanier, 84 A.D.2d 374, 376, 446 N.Y.S.2d 829;  see generally People v. Sabo, 179 Misc.2d 396, 401–405, 687 N.Y.S.2d 513), as it is in this case.

 Here, the People presented evidence that defendant formed and, indeed, documented his criminal intent by his “to-do list,” and that he purchased a shotgun and 25 shells, borrowed a vehicle, drove to the neighborhood of his intended victims with the shotgun and shells, removed the trigger-lock on the weapon, loaded the shotgun with four rounds of ammunition, exited the vehicle with the loaded shotgun, and walked to the edge of the intended victims' property.  We conclude that, by that point, defendant's actions had gone far beyond mere preparation but, rather, had become “potentially and immediately dangerous ․ [and] ‘had gone to the extent of placing it in [his] power to commit the offense unless interrupted’ ” (Mahboubian, 74 N.Y.2d at 191, 544 N.Y.S.2d 769, 543 N.E.2d 34, quoting People v. Sobieskoda, 235 N.Y. 411, 419, 139 N.E. 558).  Contrary to the view of our dissenting colleague, the fact that defendant never set foot on the property of the intended victims or pointed the shotgun at them is not dispositive of the issue whether the evidence is legally sufficient to establish whether defendant committed either attempted murder or attempted burglary.  Moreover, unlike the facts in Rizzo, here, defendant knew exactly where his intended victims could be found (see id. at 339, 158 N.E. 888).  Thus, the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), provided a “valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial” (People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367).

 Contrary to defendant's further contention, Supreme Court properly refused to suppress defendant's handwritten “to-do list” and certain statements made by defendant at the scene before he was advised of his Miranda rights.  Addressing first defendant's statements, we conclude that they were responses to threshold inquiries by the police that were “intended to ascertain the nature of the situation during initial investigation of a crime, rather than to elicit evidence of a crime” (People v. Morales, 216 A.D.2d 154, 154, 628 N.Y.S.2d 284;  see generally People v. Huffman, 41 N.Y.2d 29, 34, 390 N.Y.S.2d 843, 359 N.E.2d 353), and those statements thus were not subject to suppression (see People v. Madore, 289 A.D.2d 986, 735 N.Y.S.2d 320, lv. denied 97 N.Y.2d 757, 742 N.Y.S.2d 617, 769 N.E.2d 363;  People v. Harris, 272 A.D.2d 225, 709 N.Y.S.2d 515, lv. denied 95 N.Y.2d 935, 721 N.Y.S.2d 611, 744 N.E.2d 147).  Further, the police had probable cause to believe that defendant possessed the shotgun with the intent to use it unlawfully because he told the police that he was at the scene because “[t]his bitch f–––ed [him] over.”  The police thus had probable cause to arrest defendant (see generally People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451), and the “to-do list” was lawfully seized as incident to a lawful arrest (see People v. Weintraub, 35 N.Y.2d 351, 353–354, 361 N.Y.S.2d 897, 320 N.E.2d 636).

It is hereby ORDERED that the judgment so appealed from is affirmed.

I respectfully dissent in part.  Contrary to the view of the majority, I do not believe that the evidence is legally sufficient to support the conviction of attempted murder in the second degree or attempted burglary in the first degree.  As the majority correctly notes, section 110.00 of the Penal Law provides that “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime.”  Although I agree with the majority that the detailed “to-do list” seized from defendant at the scene and his statements following his arrest establish that he planned and intended to commit burglary and murder, “[t]his alone is insufficient ․ to establish criminal liability for attempt” (People v. Trepanier, 84 A.D.2d 374, 376, 446 N.Y.S.2d 829).  As noted, Penal Law § 110.00 also requires proof of conduct tending to effect the commission of the intended crime or crimes.  “[I]t must be proven that the defendant acted to carry out his intent.  The law does not punish evil thoughts” (People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094, rearg. denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194).  Further, the conduct “constituting an attempt [must come] very near to the accomplishment of the crime” (People v. Rizzo, 246 N.Y. 334, 337, 158 N.E. 888) or “dangerously near” thereto (id. at 338, 158 N.E. 888;  see People v. Acosta, 80 N.Y.2d 665, 670, 593 N.Y.S.2d 978, 609 N.E.2d 518;  People v. Mahboubian, 74 N.Y.2d 174, 190, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Di Stefano, 38 N.Y.2d 640, 652, 382 N.Y.S.2d 5, 345 N.E.2d 548).

Here, defendant's conduct did not come “very near” or “dangerously near” to the commission of the intended burglary or murders.  According to the evidence presented at trial, a witness observed defendant walking in the vicinity of the residence of the intended victims.  That witness called 911, and the police officer dispatched to the scene observed defendant some distance away from the driveway leading to the rear of the residence of the intended victims, and defendant's shotgun was lying on a snowbank 5 to 10 feet away from defendant.  There was no evidence that defendant ever set foot on the property of the intended victims, nor was there evidence that he pointed the shotgun at either intended victim.  Indeed, defendant was never in the presence of the intended victims and, according to the evidence presented at trial, one of the intended victims was out of town at the time of the incident.

It has been held that evidence of conduct far closer to the accomplishment of a murder, i.e., pointing a loaded pistol at a police officer, is legally insufficient to support a conviction of attempted murder absent further “proof that the defendant had his finger on the trigger, ․ or otherwise came ‘very near to the accomplishment of the intended crime’ ” (People v. Mendez, 197 A.D.2d 485, 485, 603 N.Y.S.2d 44, lv. denied 83 N.Y.2d 807, 611 N.Y.S.2d 143, 633 N.E.2d 498, quoting Di Stefano, 38 N.Y.2d at 652, 382 N.Y.S.2d 5, 345 N.E.2d 548;  see People v. Chandler, 250 A.D.2d 410, 673 N.Y.S.2d 100).  Such further proof was presented in People v. Acevedo, 256 A.D.2d 162, 683 N.Y.S.2d 499, lv. denied 93 N.Y.2d 921, 693 N.Y.S.2d 505, 715 N.E.2d 508, in which the conviction of attempted murder was upheld.  Significantly, the Court of Appeals has written that “a man [would not] be guilty of an attempt to commit a murder if he armed himself and started out to find the person whom he had planned to kill but could not find him” (Rizzo, 246 N.Y. at 339, 158 N.E. 888;  People v. Sullivan, 173 N.Y. 122, 135–136, 65 N.E. 989), and the Court further wrote in Rizzo that “[m]en would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was” (id. at 338–339, 158 N.E. 888;  see Sullivan, 173 N.Y. at 135, 65 N.E. 989).  I therefore would modify the judgment by reversing those parts convicting defendant of attempted murder in the second degree and attempted burglary in the first degree and dismissing counts one, two and six of the indictment, and I would remit the matter to Supreme Court for proceedings pursuant to CPL 470.45.

MEMORANDUM: