PEOPLE v. SWIFT (2018)

MEMORANDUM AND ORDER

On appeal from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that County Court erred in admitting in evidence certain text messages and a conversation between the victim and a witness.  The witness testified that the victim had called and texted her, indicating in each communication that he thought defendant had set him up, and to look to defendant if anything happened to the victim.  Contrary to the People's contention, we conclude that defendant preserved his contention for our review, and we agree with defendant that the text messages and testimony in question constituted hearsay (see generally People v. Buie, 86 N.Y.2d 501, 505, 634 N.Y.S.2d 415, 658 N.E.2d 192 [1995] ).  Nevertheless, even assuming, arguendo, that the court erred in admitting the communications in evidence under the present sense impression and excited utterance exceptions to the hearsay rule (cf. People v. Jones, 28 N.Y.3d 1037, 1039, 42 N.Y.S.3d 669, 65 N.E.3d 699 [2016];  People v. Hernandez, 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272 [2016];  People v. Brown, 80 N.Y.2d 729, 731–734, 594 N.Y.S.2d 696, 610 N.E.2d 369 [1993] ), we conclude that any such error is harmless (see Hernandez, 28 N.Y.3d at 1058, 43 N.Y.S.3d 237, 65 N.E.3d 1272;  People v. Spencer, 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753 [4th Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012], reconsideration denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012] ).

Defendant contends that the evidence is legally insufficient to support his conviction of manslaughter because the People failed to establish, among other things, that he acted with the requisite intent to cause serious physical injury to another person, and that the victim's death from hypothermia was reasonably foreseeable.  He further contends that the evidence is legally insufficient to support the conviction of the weapon charge because there is no evidence that he possessed a weapon.  We conclude that defendant failed to preserve the majority of those contentions for our review inasmuch as his general motion for a trial order of dismissal was not “ ‘specifically directed’ at” those alleged shortcomings in the evidence (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).  In any event, viewing the evidence in the light most favorable to the People with respect to defendant's preserved and unpreserved contentions (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence is legally sufficient to support the conviction (see People v. Pratcher, 134 A.D.3d 1522, 1524–1525, 22 N.Y.S.3d 757 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016];  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant further contends that the verdict convicting him of manslaughter is against the weight of the evidence because the victim's death from hypothermia was not a reasonably foreseeable result of the beating that he received, and thus defendant should not be held responsible for the victim's death.  That contention is unavailing.  With respect to an allegedly intervening cause of death, “[i]t is only where the death is solely attributable to the secondary agency, and not at all induced by the primary one, that its intervention constitutes a defense” (People v. Kane, 213 N.Y. 260, 270, 107 N.E. 655 [1915];  see People v. Griffin, 80 N.Y.2d 723, 726–727, 594 N.Y.S.2d 694, 610 N.E.2d 367 [1993], cert denied 510 U.S. 821, 114 S.Ct. 78, 126 L.Ed.2d 47 [1993];  see generally People v. Davis, 28 N.Y.3d 294, 301–302, 44 N.Y.S.3d 358, 66 N.E.3d 1076 [2016] ).  Here, the victim's injuries left him unable to see because both of his eyes were swollen shut and one was ruptured, he was confused and likely concussed due to head trauma, and he sustained several broken facial and skull bones.  The jury could have concluded that defendant ordered the codefendants to attack the victim, that he took part in the ensuing assault, and that he and the codefendants removed most of the victim's clothing and left him outside while the wind chill was below 40 degrees.  Thus, “defendant may not avoid responsibility by arguing that other causes contributed since his acts [and those of the codefendants that he requested] were also factors in the victim's demise” (People v. Cicchetti, 44 N.Y.2d 803, 804, 406 N.Y.S.2d 285, 377 N.E.2d 739 [1978];  see People v. Kibbe, 35 N.Y.2d 407, 413, 362 N.Y.S.2d 848, 321 N.E.2d 773 [1974], rearg. denied 37 N.Y.2d 741, 374 N.Y.S.2d 1028, 337 N.E.2d 147 [1975] ).  Consequently, we conclude that the verdict is not against the weight of the evidence, both with respect to that contention and defendant's remaining contentions concerning 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).

Finally, the sentence is not unduly harsh or severe.

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

Memorandum: