Opinion
736N/2003
Decided April 13, 2005.
Denis Dillon, District Attorney, Nassau County, ADA Fred B. Klein, Mineola, NY.
Ernest J Peace, Esq., Mineola, New York., Attorney for Defendant.
On October 20, 2004, defendant was convicted after a jury trial of Depraved Indifference Murder in the second degree. He was also convicted of Criminal Possession of a Weapon in the second degree, Criminal Possession of a Weapon in the Third Degree and Tampering with Physical Evidence. He was acquitted of Intentional Murder in the second degree.
The evidence at the trial demonstrated that on February 12, 2003, Mario Flores, who had obtained an unlicensed gun, for protection against Hector Navarette, the victim, was confronted by Mr. Navarette who blocked his automobile with another car. Mr. Navarette banged with his hand on the hood of defendant's car, verbally threatened him and approached the driver's side window. Defendant removed the gun from his jacket pocket and fired twice through the car window. When Mr. Navarette fell to the ground, defendant got out of the car and fired again at the prone victim. He then re-entered the car, and drove to the Southern State Parkway where he disposed of the gun. He attempted to have someone cover the broken car window and move the car.
Without objection at the of trial time both Intentional Murder Second Degree and Depraved Indifference Murder in the Second Degree were charged to the jury in the alternative. The jury received the case on October 19, 2004 at approximately 1:30 PM. The next morning on October 20th, the Assistant District Attorney asked the Court to withdraw the second count, Depraved Indifference Murder in the Second Degree, from the jury's consideration based upon the Court of Appeals decision of People v. Payne dated October 19, 2004. In that case the Court of Appeals, reversing the Appellate Division, determined that a one on one shooting can almost never qualify as Depraved Indifference Murder.
While the jury was deliberating, the District Attorney requested that the jury be stopped from deliberating, and instructed not to consider the count of Depraved Indifference Murder since the Court of Appeals, in People v. Payne, 3 NY3d 266 (2004), had, on facts very similar to the instant matter, determined that Depraved Indifference Murder was not an appropriate charge to submit together with Intentional Murder. The Court first learned that the Court of Appeals had rendered this decision when the District Attorney provided the Court and defense counsel with a copy of the decision that morning. Colloquy was had on the record and defense counsel objected to withdrawing the count from the jury's consideration.
The Court advised counsel at the time that it knew of no section of the Criminal Procedure Law or Penal Law that would permit withdrawal of this count from the jury once they started their deliberation. The Court also noted that the jury charge directed that they should consider the Depraved Indifference count if and only if they found the defendant not guilty of the Intentional Murder count. As a result, based upon the alternative charge and the objection of defendant, I would permit this jury to reach a verdict on all of the submitted counts. The jury, on October 20, 2004, acquitted the defendant of Intentional Murder. However, it found the defendant guilty of Depraved Indifference Murder as well as Criminal Possession of a Weapon Second Degree, Criminal Possession of a Weapon Third Degree and Tampering with Physical Evidence.
Judge DiRiggi previously was assigned this case and this Court was subsequently assigned it on January 1, 2004 upon Judge DiRiggi's retirement. The Court subsequently received a letter, dated November 1, 2004, from the District Attorney's office advising the Court that Judge DeRiggi had previously dismissed the second count of the indictment which was the Depraved Indifference Murder. On December 19, 2003, by short form order, the Hon. Donald DiRiggi had previously dismissed the Depraved Indifference Murder count upon his review of the grand jury minutes. This was the first time this court learned of the previous dismissal of the second count of the indictment. The notation of this dismissal was not appropriately noted on the court file. No reference was made by either counsel at the time of this trial as to Judge DeRiggi's decision of December 19, 2003. Neither the trial prosecutor nor the defense attorney were of record at the time of that dismissal.
Defendant now argues that having been previously dismissed (12/19/2003, DeRiggi, J.), the Depraved Indifference charge was a nullity and therefore, the conviction on that count must be set aside. He also argues that the other counts of which defendant was convicted, should be dismissed as not supported by the weight of the evidence. In the alternative, defendant argues that the second count must be set aside pursuant to People v. Payne, 3 NY3d 266 (2004).
The People submit that the Depraved Indifference Murder conviction must stand as must the conviction on the other charges. The People contend that at trial, the defendant claimed "the shooting was justified but never admitted to intending to harm the victim." They further argue that C.P.L. 330.30(1) requires that to set aside a verdict, defendant must show grounds appearing in the record which, if raised on appeal from a prospective judgement of conviction, would require reversal . . . as a matter of law before an appellate court. They rely on C.P.L. 470.05(2) to further argue that since the defendant did not object to the submission of the Depraved Indifference Murder count, he has failed to preserve that objection and as a result, the trial court is without authority to set aside the verdict. People v. Tillman, 273 AD2d 913 (4th Dept. 2000); People v. Patino, 259 AD2d 502 (2nd Dept. 1999). They also contend that the Depraved Indifference Murder charge is appropriate to the facts in this matter.
Defendant's motion is denied as to all the charges of which the jury found that the defendant was guilty. That includes the charge of Depraved Indifference Murder in the Second Degree as well as the charges of Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree, and Tampering with Physical Evidence. With regard to the third, fourth and fifth counts of the indictment, there was ample evidence at the trial to support those charges and the defendant has not set forth any basis for their dismissal.
As to the Depraved Indifference Murder charge, this court finds that the it has no power to disturb the verdict of the jury. The failure of the defense attorney to object to the submission of this charge to the jury and his vociferous objection to the removal of that charge from the jury's consideration demonstrates that his current objective of seeking to have this court dismiss that charge is not preserved. It must be noted that defense counsel at the conclusion of the people's case moved for dismissal arguing that "the people have not proved beyond a reasonable doubt that the defendant was not acting in self defense." Further, at the conclusion of the case, defense counsel simply renewed his previous motion made at the end of the people's case.
The court has repeatedly held that an indictment may be dismissed due to insufficient evidence only when the sufficiency issue pursued on appeal was preserved by a motion to dismiss at trial. People v. Hines, 97 NY2d 56; People v. Gray, 86 NY2d 10 (1995); People v. Lawrence, 85 NY2d 1002. Further, even when a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be specifically directed at the alleged error." People v. Hines, supra, People v. Tillman, supra. Defense counsel failed to specifically preserve the alleged error as required by case law. It must be noted that former counsel for the defendant made the motion to dismiss which resulted in Judge DeRiggi's decision of December 19, 2003. Present counsel should have been aware of that decision. Therefore, this court is without authority to set aside the verdict. People v. Tillman, supra.
"The `basis for vacating a jury verdict prior to sentencing is strictly circumscribed by CPLR 330.30 to allow vocoder only if reversal would have been mandated on appeal as a matter of law.'" ( People v. Ortiz, 250 AD2d 372, 375, lv denied 92 NY2d 881, quoting People v. D'Allessandro, 184 AD2d 114, 117, lv denied 81 NY2d 884). Reversal of a judgment of conviction based on legally insufficient evidence is not "mandated on appeal as a matter of law" unless the issue has been preserved for appellate review by a timely motion to dismiss directed at the specific deficiency in the proof ( People v. Ortiz, supra, at 375; see, People v. Gray, 86 NY2d 10, 19-20). People v. Tillman, 273 AD2d 913 (4th Dept., 2000).
"A trial court is permitted to set aside a verdict only on a ground which, if raised [* * * 2] on appeal, would require reversal as a matter of law (see, CPLR 330.30). For the defendant to properly preserve his claim for appellate review, he must have raised it prior to the discharge of the jury (see, People v. Thomas, 242 AD2d 281; People v. James, 112 AD2d 380). People v. Patino, 259 AD2d 502 (4th Dept., 1999)
People v. Ford, 62 NY2d 275 (1984) provides that a trial court may submit a lesser crime arising out of the same criminal transaction even if it is not a lesser included offense to the charge. It further stands for the proposition that defendant, by failing to object to the submission of a lesser charge, has failed to preserve such objection.
In People v. Hector, 295 AD2d 212 (1st Dept., 2002); app. den. 98 NY2d 730 where a "claim that the assault count was erroneously submitted was unpreserved, the trial court properly granted reargument of the motion to set aside the verdict and reinstated the jury's guilty verdict of first degree assault, since, due to the lack of preservation, there was no ground that `would require a reversal or modification of the judgment as a matter of law by an appellate court' (CPLR 330.30 [1]) and, therefore, no authority for the trial court to act under that statute ( People v. Carter, 63 NY2d 530, 536)."
It is well established that, under section 6 of article I of the New York Constitution, a "valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" ( People v. Harper, 37 NY2d 96, 99), and "[until] the grand jury shall act, no court can acquire jurisdiction to try" ( People ex rel. Battista v. Christian, 249 NY 314, 319), in each action before us the Grand Jury returned a valid indictment sufficient to require the defendant to proceed to trial with respect to an identified criminal transaction out of which his subsequent conviction arose. As in this matter, the trial court had subject matter jurisdiction; an indictment was returned (see, Matter of Simonson v. Cahn, 27 NY2d 1, 4; People ex rel. Battista v. Christian, 249 NY 314, supra), the indictment or information alleged the elements of the crime charged (see, People v. Scott, 3 NY2d 148, 152-153; People v. McGuire, 5 NY2d 523, 526).
The fact that the charge was mistakenly submitted to the jury for their consideration is clearly not a jurisdictional defect. The Grand Jury of Nassau County had previously returned a valid indictment which included a count for Depraved Indifference Murder in the Second Degree.
In this instance, the defendant by acquiescing to or affirmatively requesting that the Depraved Indifference count be considered by the jury, defendant can not now object at this stage. In essence, the defendant the defendant has waived his right to complain of this error. (See, People v. Ford, supra.)
Similarly in the case of People v. Hector, 295 AD2d 212 (2002), defendant did not preserve the issue. Rather, defense counsel specifically requested that the count remain under consideration by the jury at the time the People requested to withdraw the Depraved Indifference count from consideration. It was not until the jury rendered its verdict and convicted the defendant of that count did defense counsel make the instant application. Defense counsel ought not be allowed the benefit of a favorable change under these circumstances in that both counts of murder (Intentional and Depraved Indifference) continued to be considered by the jury as a result of his request in spite of the decision in People v. Payne, supra and now, post verdict, complain that the court permitted the jury to consider the Depraved Indifference count. Defense counsel specifically stated that he had no objection to the charge being considered. Therefore, defendant waived any objection to the charge due to his affirmative acquiescence (see, People v. Boone, 269 AD2d. 459 (2nd Dept., 2000).
There does not appear to be any basis upon which such charge may be dismissed. The jury verdict on all the charges is sustained.
This constitutes the decision and Order of this Court.
SO ORDERED.