PEOPLE v. THOMSON (2004)

Appeals (1) from a judgment of the Supreme Court (Teresi, J.), rendered October 3, 2002 in Albany County, convicting defendant following a nonjury trial of the crimes of attempted murder in the first degree, attempted assault in the first degree (four counts) and reckless endangerment in the first degree, and (2) from a judgment of said court, rendered November 14, 2002 in Albany County, which resentenced defendant following his conviction of the crimes of attempted assault in the first degree (four counts).

After a prior successful appeal to this Court (279 A.D.2d 644, 719 N.Y.S.2d 171 [2001] ) and a nonjury trial, defendant was convicted of attempted murder in the first degree, four counts of attempted assault in the first degree and reckless endangerment in the first degree.   The charges stem from defendant's theft of a delivery truck in Saratoga County and an ensuing police chase throughout Saratoga and Albany Counties.   Before being apprehended, defendant, among other conduct, drove the truck into an unmarked police vehicle operated by Albany Police Detective Peter McKenna.   This particular conduct formed the basis of a charge of attempted murder in the first degree (see Penal Law §§ 110.00, 125.27[1][a][i] ) and one of the charges of attempted assault in the first degree (see Penal Law §§ 110.00, 120.10 [1] ).   Sentenced to concurrent prison terms on all counts, defendant now appeals.

Defendant argues that his conviction for attempted murder should be vacated as “duplicitous.”   A duplicitous count is one that impermissibly charges more than one crime (see CPL 200.30;  see also People v. First Meridian Planning Corp., 86 N.Y.2d 608, 616, 635 N.Y.S.2d 144, 658 N.E.2d 1017 [1995] ).   Here, this count is not invalid for duplicity as it clearly charges but one offense.   To the extent that defendant is actually taking issue with the fact that he was charged and convicted of both attempted murder and attempted assault for the same conduct, we still find no error.

A person is guilty of murder in the first degree under Penal Law § 125.27(1)(a)(i) when “[w]ith intent to cause the death of another person, he causes the death of such person ․ and ․ the intended victim was a police officer ․ performing his official duties.” ¹  A person is guilty of assault in the first degree under Penal Law § 120.10(1) when “[w]ith intent to cause serious physical injury to another person, he causes such injury to such person ․ by means of a deadly weapon or a dangerous instrument.” Thus, it is theoretically possible to commit attempted murder in the first degree without also committing attempted assault in the first degree (see e.g. People v. Chapman, 97 A.D.2d 381, 468 N.Y.S.2d 3 [1983];  see generally People v. Grant, 96 A.D.2d 867, 465 N.Y.S.2d 750 [1983] ).²

In other words, these two charges were noninclusory concurrent counts (see CPL 300.30[4] ) and it was within Supreme Court's discretion to consider both in rendering its verdict (see CPL 300.40[3][a];  see also People v. Brown, 67 N.Y.2d 555, 505 N.Y.S.2d 574, 496 N.E.2d 663 [1986], cert. denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161 [1987] ).   Thus, a conviction on each count was legally permissible (see People v. Lebron, 305 A.D.2d 799, 759 N.Y.S.2d 575 [2003], lv. denied 100 N.Y.2d 583, 764 N.Y.S.2d 394, 796 N.E.2d 486 [2003];  People v. Davis, 165 A.D.2d 610, 569 N.Y.S.2d 999 [1991], lv. denied 78 N.Y.2d 1010, 575 N.Y.S.2d 818, 581 N.E.2d 1064 [1991];  People v. Grant, supra ), although any sentence imposed thereon had to be concurrent (see CPL 300.30[3];  Penal Law § 70.25[2] ), as was the case here.   We are also unpersuaded by defendant's contention that People v. Rodriguez, 63 A.D.2d 919, 406 N.Y.S.2d 63 [1978], which involved the submission of a lesser included offense to a jury, mandates reversal of the attempted murder conviction or a new trial.

We likewise reject defendant's claim that the People failed to prove each of the “attempt” crimes because the evidence at trial established that he was under the influence of alcohol and/or drugs at the time of the incident.   While a defendant's intoxication can negate the element of intent to commit a crime, Supreme Court, as the trier of fact, obviously rejected as insufficient defendant's proof on this issue (see People v. Moradel, 278 A.D.2d 250, 717 N.Y.S.2d 264 [2000], lv. denied 99 N.Y.2d 538, 752 N.Y.S.2d 599, 782 N.E.2d 577 [2002];  People v. Taylor, 245 A.D.2d 399, 666 N.Y.S.2d 445 [1997], lv. denied 91 N.Y.2d 930, 670 N.Y.S.2d 412, 693 N.E.2d 759 [1998];  People v. Dorst, 194 A.D.2d 622, 598 N.Y.S.2d 800 [1993], lv. denied 82 N.Y.2d 924, 610 N.Y.S.2d 176, 632 N.E.2d 486 [1994] ).   Viewing the evidence at trial in the light most favorable to the People (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), we find that it was legally sufficient to establish the element of intent, despite some evidence that defendant was intoxicated (see People v. Taylor, supra;  People v. Angel, 185 A.D.2d 356, 586 N.Y.S.2d 622 [1992], lv. denied 80 N.Y.2d 1025, 592 N.Y.S.2d 674, 607 N.E.2d 821 [1992] ).   Likewise, upon the exercise of our factual review power, we are satisfied that the verdict on each count was not against the weight of the evidence (see CPL 470.15[5];  People v. Bleakley, supra ).

ORDERED that the judgments are affirmed.

FOOTNOTES

1.   Notably, defendant challenged this particular count by arguing that he could not have recognized McKenna's vehicle to be a police vehicle since it was unmarked (cf. People v. Rodriguez, 63 A.D.2d 919, 406 N.Y.S.2d 63 [1978] ).

2.   Said differently, the counts were not multiplicitous in that each count required proof of an additional fact that the other did not (see e.g. People v. Kindlon, 217 A.D.2d 793, 629 N.Y.S.2d 827 [1995], lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 453, 658 N.E.2d 231 [1995];  People v. Senisi, 196 A.D.2d 376, 610 N.Y.S.2d 542 [1994] ).

CARPINELLO, J.

CARDONA, P.J., MERCURE, PETERS and SPAIN, JJ., concur.