Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Richard E. VANGORDEN, Defendant–Appellant.
Davison Law Office Pllc, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), For Respondent.
Davison Law Office Pllc, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of Counsel), For Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of attempted murder in the first degree (Penal Law §§ 110.00, 125.27[1][a][i] ; [b] ), criminal use of a firearm in the first degree (§ 265.09[1][b] ), and reckless endangerment in the first degree (§ 120.25). Defendant was driving a pickup truck, with his girlfriend as a passenger, when two State Police officers attempted to stop him for a traffic violation. Defendant fled from the officers at high speeds, stopped for a short time, and then tried to drive off again. After briefly driving off the road and getting stuck, defendant backed out onto the road and was facing the police vehicle from a distance of about 50 feet. He accelerated toward the police vehicle, swerved to his left, "rammed" the passenger side of the police vehicle with the passenger side of his truck, and then drove away. The officers kept pursuing defendant, and he slowed down, held a rifle out the rear window of the truck, and fired at least two shots, one of which struck the police vehicle near its driver's seat from an estimated distance of 36 feet. Defendant was convicted of, inter alia, attempted murder in the first degree with respect to each officer and reckless endangerment in the first degree with respect to his girlfriend. He was acquitted of two additional counts of reckless endangerment in the first degree pertaining to the officers.
We reject defendant's contention that the counts of the indictment charging attempted murder in the first degree were jurisdictionally defective because they failed to allege that he was more than 18 years old when the crimes occurred (see Penal Law § 125.27[1][b] ; see generally People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656 ). By alleging that defendant committed "Attempted Murder in the First Degree," those counts "adopt[ed] the title of" the first-degree murder statute and incorporated all of the elements of that crime, including the age element, thereby affording defendant fair notice of the charges against him (People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 ; see People v. Real, 293 A.D.2d 251, 251, 739 N.Y.S.2d 267, lv. denied 98 N.Y.2d 860, 746 N.Y.S.2d 469, 774 N.E.2d 234 ; see generally People v. D'Angelo, 98 N.Y.2d 733, 735, 750 N.Y.S.2d 811, 780 N.E.2d 496 ; People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813 ).
Defendant further contends that the attempted murder counts were duplicitous as indicted inasmuch as they failed to specify which of his shots was intended to kill each officer. Even assuming, arguendo, that defendant's contention is preserved for our review as a result of County Court's rejection of defendant's generalized assertion in his omnibus motion that the indictment "include[d] duplicitous counts" (cf. People v. Rivera, 257 A.D.2d 425, 425–426, 683 N.Y.S.2d 513, lv. denied 93 N.Y.2d 901, 689 N.Y.S.2d 714, 711 N.E.2d 990 ; see generally People v. Allen, 24 N.Y.3d 441, 448–450, 999 N.Y.S.2d 350, 24 N.E.3d 586 ), we conclude that it is without merit. " ‘[T]here is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict,’ " such as which shot was intended for each officer (People v. Mateo, 2 N.Y.3d 383, 408, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 ; see People v. Del–Debbio, 244 A.D.2d 195, 195, 664 N.Y.S.2d 28, lv. denied 91 N.Y.2d 925, 670 N.Y.S.2d 406, 693 N.E.2d 753 ).
As the People correctly concede, however, the evidence is legally insufficient to establish that defendant was more than 18 years old at the time of the crimes. Although defendant failed to preserve that contention for our review (see People v. Castro, 286 A.D.2d 989, 989–990, 730 N.Y.S.2d 653, lv. denied 97 N.Y.2d 680, 738 N.Y.S.2d 295, 764 N.E.2d 399 ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Defendant was in fact 38 years old at the time of the crimes in September 2011, and the jury naturally had the opportunity to observe his appearance during his trial in 2012, but that opportunity "does not, by itself, satisfy the People's obligation to prove defendant's age" (Castro, 286 A.D.2d at 990, 730 N.Y.S.2d 653 ; see People v. Blodgett, 160 A.D.2d 1105, 1106, 553 N.Y.S.2d 897, lv.
denied 76 N.Y.2d 731, 558 N.Y.S.2d 892, 557 N.E.2d 1188 ), and there was no evidence at trial bearing on his age (cf. People v. Kessler, 122 A.D.3d 1402, 1403, 996 N.Y.S.2d 836, lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 ; People v. Perryman, 178 A.D.2d 916, 917–918, 578 N.Y.S.2d 785, lv. denied 79 N.Y.2d 1005, 584 N.Y.S.2d 460, 594 N.E.2d 954 ). The evidence is sufficient to establish that defendant intended to kill each of the officers (see generally People v. Cabassa, 79 N.Y.2d 722, 728, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563 ), and we reject defendant's further contention that the verdict is against the weight of the evidence with respect to his intent (see People v. Simcoe, 75 A.D.3d 1107, 1108–1109, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We therefore modify the judgment by reducing the conviction under counts one and two to attempted murder in the second degree (§§ 110.00, 125.25[1] ), and we remit the matter to County Court for sentencing on those counts.
Again assuming, arguendo, that defendant's duplicity contention is preserved for our review, we conclude that the reckless endangerment count of which he was convicted was not duplicitous. Reckless endangerment may be charged as a continuing offense, and defendant's conduct took place in the course of a single incident without "cessation or suspension in the criminal activity," such that a single count of reckless endangerment with respect to his girlfriend was proper even if, as he contends on appeal, she was exposed to multiple dangers over the course of the incident (People v. Flanders, 111 A.D.3d 1263, 1265–1266, 974 N.Y.S.2d 692, affd. 25 N.Y.3d 997, 10 N.Y.S.3d 169, 32 N.E.3d 384 ; see People v. Wells, 141 A.D.3d 1013, 1014–1015, 35 N.Y.S.3d 795 ; cf. People v. Boykins, 85 A.D.3d 1554, 1555, 924 N.Y.S.2d 711, lv. denied 17 N.Y.3d 814, 929 N.Y.S.2d 802, 954 N.E.2d 93 ). Moreover, we agree with the court that the three counts of reckless endangerment in the indictment were not multiplicitous inasmuch as each count involved a different victim (see generally People v. Cunningham, 12 A.D.3d 1131, 1132, 785 N.Y.S.2d 244, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677, reconsideration denied 5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265 ). Defendant correctly notes that conduct endangering multiple victims may be charged in a single count of reckless endangerment without violating the prohibition against duplicity (see People v. Stockholm, 279 A.D.2d 704, 706, 719 N.Y.S.2d 330, lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87 ), but in our view a single count is not required in such cases (see generally People v. Payne, 71 A.D.3d 1289, 1290–1291, 897 N.Y.S.2d 292, lv. denied 15 N.Y.3d 777, 907 N.Y.S.2d 465, 933 N.E.2d 1058 ). In any event, we note that the remedy for multiplicitous counts is dismissal of all but one of the affected counts (see People v. Pruchnicki, 74 A.D.3d 1820, 1822, 902 N.Y.S.2d 752, lv. denied 15 N.Y.3d 855, 909 N.Y.S.2d 32, 935 N.E.2d 824 ) and defendant was convicted of only one of the counts in question.
We agree with defendant that the reckless endangerment count of which he was convicted is not supported by legally sufficient evidence inasmuch as the record fails to establish that his conduct exposed his girlfriend to "a grave risk of death" (Penal Law § 120.25 ; see People v. Hatch, 66 A.D.3d 1494, 1495, 885 N.Y.S.2d 800 ). There was evidence that defendant "rammed" the side of the police vehicle with the part of his truck in which his girlfriend was sitting, but neither officer could estimate how fast defendant was going at impact, and the relatively short distance he traveled toward the police vehicle tended to show that he could not have been going very fast. Furthermore, both vehicles remained operable after the collision, and there was no evidence that anyone sustained any injury from it. Even viewing the evidence 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 ), we conclude that it is legally insufficient to establish that the collision created a grave risk of death to defendant's girlfriend (see People v. Ostraticky, 117 A.D.2d 759, 759–760, 499 N.Y.S.2d 3 ; see generally People v. Hurdle, 106 A.D.3d 1100, 1101–1103, 965 N.Y.S.2d 626, lv. denied 22 N.Y.3d 956, 996, 977 N.Y.S.2d 187, 999 N.E.2d 552 ; Hatch, 66 A.D.3d at 1495, 885 N.Y.S.2d 800 ). We also conclude that the evidence does not establish that defendant's girlfriend was exposed to a grave risk of death at any other time during the incident as a whole. Because the evidence concerning the collision is sufficient to establish that defendant's reckless conduct created a significant risk of serious physical injury to his girlfriend, we further modify the judgment by reducing the conviction under count ten to reckless endangerment in the second degree (§ 120.20; see Ostraticky, 117 A.D.2d at 760, 499 N.Y.S.2d 3 ), and we remit the matter to County Court for sentencing on that count as well.
By failing to request different jury instructions or to object to the charge as given, defendant failed to preserve his challenges to the jury instructions on the counts charging attempted murder and criminal use of a firearm (see People v. Autry, 75 N.Y.2d 836, 838–839, 552 N.Y.S.2d 908, 552 N.E.2d 156 ; People v. Townsley, 50 A.D.3d 1610, 1611, 856 N.Y.S.2d 424, lv. denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 ). We reject his contention that the alleged error in the jury instructions on criminal use of a firearm constitutes a mode of proceedings error (see generally Autry, 75 N.Y.2d at 839, 552 N.Y.S.2d 908, 552 N.E.2d 156 ), and we decline to review his unpreserved challenges as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Although defendant is correct that attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1] ) is not a lesser included offense of attempted murder in the first degree (see People v. Thomson, 13 A.D.3d 805, 806–807, 786 N.Y.S.2d 262, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684 ), he waived his right to complain of the court's error in that regard by failing to object (see People v. Ford, 62 N.Y.2d 275, 280–281, 476 N.Y.S.2d 783, 465 N.E.2d 322 ). In addition, we conclude that the defendant's conviction of attempted murder when the jury had before it the purported lesser included offense of attempted assault in the first degree "forecloses [his] challenge to the court's refusal to charge" attempted assault in the second degree under Penal Law §§ 110.00 and 120.05(1) as a lesser included offense (People v. Boettcher, 69 N.Y.2d 174, 180, 513 N.Y.S.2d 83, 505 N.E.2d 594 ; see People v. Cordato, 85 A.D.3d 1304, 1307–1308, 924 N.Y.S.2d 649, lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 ). Even though attempted assault in the first degree is not an actual lesser included offense of attempted murder, the failure to submit lesser degrees of attempted assault could not have affected the jury's deliberations under the circumstances of this case (see generally Boettcher, 69 N.Y.2d at 180, 513 N.Y.S.2d 83, 505 N.E.2d 594 ).
We reject defendant's contention that he was denied effective assistance of counsel. In particular, defendant has not demonstrated that counsel was ineffective in not pursuing an extreme emotional disturbance defense inasmuch as there is no indication in the record that any basis existed for such a defense (see People v. Schumaker, 136 A.D.3d 1369, 1372, 25 N.Y.S.3d 487, lv. denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211, reconsideration denied 28 N.Y.3d 974, 43 N.Y.S.3d 261, 66 N.E.3d 7 ; People v. Naqvi, 132 A.D.3d 779, 780–781, 17 N.Y.S.3d 762, lv. denied 27 N.Y.3d 1072, 38 N.Y.S.3d 843, 60 N.E.3d 1209 ), nor has he demonstrated that counsel lacked a strategic or other legitimate reason for not challenging a certain prospective juror for cause (see People v. Barboni, 21 N.Y.3d 393, 405–407, 971 N.Y.S.2d 729, 994 N.E.2d 820 ; People v. Anderson, 113 A.D.3d 1102, 1103, 977 N.Y.S.2d 549, lv. denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 ). We have reviewed the remaining allegations of ineffective assistance raised by defendant, and we conclude that he received meaningful representation (see generally People v. Carver, 27 N.Y.3d 418, 422, 33 N.Y.S.3d 857, 53 N.E.3d 734 ; People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
Finally, defendant contends that the People failed to comply with the procedural requirements of CPL 400.21 in seeking to have him sentenced as a second felony offender given that they did not file a predicate felony offender statement as required by CPL 400.21(2). That contention is not preserved for our review (see People v. Pellegrino, 60 N.Y.2d 636, 637, 467 N.Y.S.2d 355, 454 N.E.2d 938 ; People v. Guillory, 98 A.D.3d 835, 835–836, 950 N.Y.S.2d 285, lv. denied 20 N.Y.3d 932, 957 N.Y.S.2d 692, 981 N.E.2d 289 ), but we exercise our discretion to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; People v. Loper, 118 A.D.3d 1394, 1395–1396, 988 N.Y.S.2d 744, lv. denied 25 N.Y.3d 1204, 16 N.Y.S.3d 526, 37 N.E.3d 1169 ), and we agree with defendant. Contrary to the contention of the prosecutor at sentencing, the need for a predicate felony offender statement was not obviated by defendant's pretrial admission to a special information setting forth his prior felony conviction as an element of a count charging criminal possession of a weapon. The special information did not permit defendant to raise constitutional challenges to his prior conviction, as he had the right to do before being sentenced as a second felony offender (see People v. Brown, 13 A.D.3d 667, 669, 786 N.Y.S.2d 592, lv. denied 4 N.Y.3d 742, 790 N.Y.S.2d 654, 824 N.E.2d 55, reconsideration denied 4 N.Y.3d 884, 798 N.Y.S.2d 729, 831 N.E.2d 974 ; see generally CPL 200.60[3] ; 400.21 [7][b] ). We therefore further modify the judgment by vacating the sentence and remitting the matter to County Court for resentencing on the counts not otherwise reduced herein. In light of our determination, we do not reach defendant's challenge to the severity of the sentence.
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reducing the conviction of attempted murder in the first degree under counts one and two of the indictment to attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), reducing the conviction of reckless endangerment in the first degree under count ten of the indictment to reckless endangerment in the second degree (§ 120.20), and vacating the sentence imposed, and as modified the judgment is affirmed, and the matter is remitted to Steuben County Court for the filing of a predicate felony offender statement, sentencing on the counts reduced herein, and resentencing on the remaining counts.