Opinion
2019–09536 Ind. No. 953/17
05-12-2021
The PEOPLE, etc., respondent, v. Miguel Urias ARGUETA, appellant.
Joseph F. DeFelice, Kew Gardens, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Autumn S. Hughes of counsel), for respondent.
Joseph F. DeFelice, Kew Gardens, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Autumn S. Hughes of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered July 23, 2019, convicting him of attempted murder in the second degree, attempted assault in the first degree, attempted assault in the second degree, criminal use of a firearm in the first degree, criminal use of a firearm in the second degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and sentencing him to concurrent determinate terms of imprisonment of 10 years to be followed by 5 years of postrelease supervision on the convictions of attempted murder in the second degree, attempted assault in the first degree, criminal use of a firearm in the second degree, and criminal possession of a weapon in the second degree (two counts), a concurrent indeterminate term of imprisonment of 1 to 3 years on the conviction of attempted assault in the second degree, and a determinate term of imprisonment of 5 years to be followed by 5 years of postrelease supervision on the conviction of criminal use of a firearm in the first degree, to run consecutively to all other terms of imprisonment.
ORDERED that the judgment is modified, on the law, (1) by vacating the conviction of attempted assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) by directing that all sentences shall run concurrently; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The testimony regarding the defendant's membership in a gang and prior encounters with the victim was properly admitted to establish motive and intent, and to explain the defendant's connection to his accomplices and their relationship with the victim (see People v. Bailey, 32 N.Y.3d 70, 83, 85 N.Y.S.3d 377, 110 N.E.3d 489 ; People v. Mansilla, 187 A.D.3d 794, 796, 130 N.Y.S.3d 91 ; People v. Oliver, 19 A.D.3d 512, 512–513, 797 N.Y.S.2d 116 ), and the prejudicial effect of that testimony did not outweigh its probative value (see People v. Sarkodie, 172 A.D.3d 909, 911, 100 N.Y.S.3d 63 ).
The defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review, as defense counsel did not object to the challenged remarks (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Mais, 133 A.D.3d 687, 688–689, 20 N.Y.S.3d 129 ). In any event, the challenged remarks constituted a fair response to defense counsel's summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Johnson, 127 A.D.3d 785, 786, 4 N.Y.S.3d 541 ; People v. Harris, 117 A.D.3d 847, 859, 985 N.Y.S.2d 643, affd 26 N.Y.3d 1, 18 N.Y.S.3d 583, 40 N.E.3d 560 ).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his request for new assigned counsel, made prior to the commencement of the retrial. "The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at [the] defendant's option" ( People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; see People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; People v. Sawyer, 57 N.Y.2d 12, 18–19, 453 N.Y.S.2d 418, 438 N.E.2d 1133 ). A trial court's duty to consider substitution arises "only where [the] defendant makes a ‘seemingly serious request[ ]’ " ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ). Here, the record does not support the conclusion that the defendant's request was based on specific factual allegations of a serious complaint about his counsel (see People v. Porto, 16 N.Y.3d at 100–101, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; People v. Ward, 121 A.D.3d 1026, 1027–1028, 994 N.Y.S.2d 675 ).
Contrary to the defendant's contention, criminal possession of a weapon in the second degree as charged in counts 6 and 7 to the jury are not inclusory concurrent counts of criminal use of a firearm in the first degree as charged in count 4 to the jury. "Concurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater" ( CPL 300.30[4] ). To demonstrate that a count is a lesser included offense in accordance with CPL 1.20(37), a defendant must establish "that it is theoretically impossible to commit the greater crime without at the same time committing the lesser" ( People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ). "Such determination requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution" ( People v. Repanti, 24 N.Y.3d 706, 710, 5 N.Y.S.3d 332, 28 N.E.3d 511 ; see People v. Glover, 57 N.Y.2d at 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ). "If the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met" ( People v. Green, 56 N.Y.2d 427, 431, 452 N.Y.S.2d 389, 437 N.E.2d 1146 ).
As charged in count 6 to the jury, criminal possession of a weapon in the second degree can only be committed if the possession occurs outside of the defendant's home or place of business ( Penal Law § 265.03[3] ). Criminal use of a firearm in the first degree, however, can be committed anywhere, including in the defendant's home or place of business ( Penal Law § 265.09[1][a] ). Since the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met, and it is not a lesser included offense of the greater (see People v. Leon, 7 N.Y.3d 109, 112, 817 N.Y.S.2d 619, 850 N.E.2d 666 ; People v. Okafore, 72 N.Y.2d 81, 89 n. 3, 531 N.Y.S.2d 762, 527 N.E.2d 245 ; People v. Totten, 161 A.D.2d 678, 555 N.Y.S.2d 451 ).
As charged in count 7 to the jury, criminal possession of a weapon in the second degree is committed when a person possesses a loaded firearm with the intent to use it unlawfully ( Penal Law § 265.03[1][b] ). As charged here, criminal use of a firearm in the first degree requires that the defendant commit a class B violent felony offense and possess a loaded deadly weapon, but no culpable mental state is required with respect to that possession ( Penal Law § 265.09[1][a] ). "A crime which as defined by the Penal Law includes as an element [the] defendant's mental state ... cannot be a lesser included offense of a crime in the definition of which mental state plays no part" ( People v. Green, 56 N.Y.2d at 429, 452 N.Y.S.2d 389, 437 N.E.2d 1146 ). Since it is possible for a defendant to commit a class B violent felony offense while in possession of a loaded firearm that the defendant has no intent to use unlawfully or otherwise, the subject count of criminal possession of a weapon in the second degree is not a lesser included offense of criminal use of a firearm in the first degree (see id. at 431–432, 452 N.Y.S.2d 389, 437 N.E.2d 1146 ; People v. Miguel, 53 N.Y.2d 920, 923–924, 440 N.Y.S.2d 923, 423 N.E.2d 400 ; People v. Newton, 61 A.D.2d 1051, 1052, 403 N.Y.S.2d 277, affd 46 N.Y.2d 877, 414 N.Y.S.2d 680, 387 N.E.2d 612 ; People v. Molineaux, 156 A.D.3d 1250, 1253–1254, 68 N.Y.S.3d 558 ; see also People v. Williams, 162 A.D.3d 694, 697–698, 78 N.Y.S.3d 386 ).
As the People correctly concede, however, as charged here and under the circumstances, attempted assault in the second degree is an inclusory concurrent count of attempted assault in the first degree, and, therefore, the verdict of guilty upon the greater count is deemed to be a dismissal of the lesser count submitted (see CPL 300.40[3][b] ; People v. Green, 56 N.Y.2d at 429–430, 452 N.Y.S.2d 389, 437 N.E.2d 1146 ; People v. Rivera, 268 A.D.2d 538, 539, 703 N.Y.S.2d 195 ). Accordingly, the conviction of attempted assault in the second degree and the sentence imposed thereon are vacated, and that count of the indictment is dismissed.
Regarding the sentence, the People concede that the consecutive sentence imposed on the conviction of criminal use of a firearm in the first degree was improper. The intent of Penal Law § 265.09(2) is that "the ‘display[ ]’ of a loaded weapon during the commission of a class B violent felony will automatically result in a five-year additional sentence, absent any of the mitigating factors set forth further in the subdivision" ( People v. Rhodes, 281 A.D.2d 225, 227, 723 N.Y.S.2d 2, quoting Penal Law § 265.09[2] ). This provision does not apply here, since the defendant's conviction under Penal Law § 265.09(1)(a) did not involve the display of a loaded, operable weapon (see id. § 265.09[2] ), and his criminal liability for the predicate class B violent felony offense was based on the conduct of another pursuant to Penal Law § 20.00 (see Penal Law § 265.09[2] ; cf. People v. Sosa–Marquez, 177 A.D.3d 1003, 1005, 115 N.Y.S.3d 333 ; People v. Rhodes, 281 A.D.2d at 227, 723 N.Y.S.2d 2 ). Accordingly, the Supreme Court was not required by Penal Law § 265.09(2) to "impose an additional consecutive sentence of five years to the sentence imposed on" the conviction of attempted murder in the second degree. We therefore modify the judgment of conviction so as to direct that all sentences run concurrently (see CPL 470.20 ; People v. LaSalle, 95 N.Y.2d 827, 829, 712 N.Y.S.2d 437, 734 N.E.2d 749 ). The sentence imposed, as so modified, was not excessive (see CPL 470.15[6][b] ; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.