Opinion
8118/05.
Decided February 3, 2009.
Attorney for the People: ADA Cynthia A. Lynch, Office of District Attorney, Kings County, Brooklyn, NY.
Attorney for the Defendant: Martin G. Goldberg, Esq., Franklin Square, NY.
In the pre-dawn hours of August 27, 2005, the defendant Ricky Simmons was driving with his former girlfriend Nichole Evans. Ms. Evans spotted the car of another boyfriend Luc Saintine near where he sublet a room. At Ms. Evans prompting, the defendant broke into the building armed with a 9mm and went up the stairs directly to the small room. He broke the door in discovering the naked Mr. Saintine in bed with a woman. Words were exchanged and the defendant shot his victim point blank in the chest, back and back of the head — each shot fatal.
Defendant was charged with capital murder on the theory that he murdered Mr. Saintine in furtherance of the crime of Burglary in the Second Degree (PL 125.27[a][vii]). Additional charges of Second Degree Murder, Burglary in the Second Degree and Criminal Possession of a Weapon were also filed. After trial, Mr. Simmons was convicted by a jury of Murder in the First Degree, Burglary in the Second Degree and Criminal Possession of a Weapon in the Second Degree.
Defendant now moves to set aside the verdict (CPL 330.30) on the following grounds: (a) the court's refusal to submit the lesser-included offenses of Manslaughter in the First Degree and Manslaughter in the Second Degree to the jury; (b) the court's failure to amplify the standard criminal jury instruction on burglary to explain the difference between a crime and a violation or to let defense counsel do so in closing argument; (c) the prosecutor's prejudicial actions during her summation; and (d) the court's failure to instruct the jury that the defendant's intent to commit murder cannot stand as the predicate for first degree felony murder.
Criminal Procedure Law Section 330.30 (1) allows a court to "set aside or modify the verdict or any part thereof" if there is something in the record which on appeal "would require a reversal or modification of the judgment as a matter of law by an appellate court". In determining the motion, the court must view the evidence in a light most favorable to the People ( People v Floyd, 176 AD2d 554).
A. Lesser Included Offenses
During the charge conference, defense counsel requested that the court submit the charges of Manslaughter in the First Degree and Manslaughter in the Second Degree as lesser-included offenses of intentional murder. The court declined to do so since there is no reasonable view of the evidence from which the jury could have concluded that the defendant, in shooting his victim three times at close range, fatally perforating his spine, lung and brain, was acting recklessly or with the intent merely to injure, rather than kill, Mr. Saintine ( People v Bonilla, 57 AD3d 400; People v Tyler , 43 AD3d 633 ; People v Tatum , 35 AD3d 511 ; People v Seabrooks , 27 AD3d 494 ; People v Moreno , 16 AD3d 438 ; People v Alston, 298 AD2d 702; People v Cruz, 298 AD2d 174; People v McNeil, 273 AD2d 600; People v Wheeler, 257 AD2d 673; People v Kelly, 221 AD2d 661).
Defendant's further contention that the court improperly defined the term "reckless" in failing to charge manslaughter is similarly misplaced (see: People v Heinsohn, 61 NY2d 855; People v Montanez, 41 NY2d 53).
Since no view of the evidence exists to support submission of these charges, reversal or modification as a matter of law is not required and the motion is denied on this ground.
B. Improper Jury Charge/Defense Summation
The defense next argues that the verdict must be set aside because the court did not amplify the burglary charge to differentiate a crime from a violation; or to let counsel do so in his summation.
In defining burglary to a jury, neither party is entitled to a laundry list of possible intended crimes to satisfy the burglar's intent ( People v Mackey, 49 NY2d 274), and attorneys, in closing arguments, must relate facts and not define law. This does not mean that attorneys are prohibited from asking jurors to draw inferences or arrive at conclusions favorable to his or her side, and nothing in the court's rulings during summations prevented this. The court merely directed counsel to stay away from defining the law — which is the role of the court. To allow otherwise would be to eviscerate the pattern criminal jury instructions which insure uniform due process to accused persons across the state ( People v Henderson, 99 NY2d 20; People v Lewis , 13 AD3d 208 ; People v Caruso , 6 AD3d 980 ). It is unlikely an appellate court would determine otherwise, and the motion is, therefore, denied on these grounds.
C. The Prosecutor's Summation
Defendant next claims that the prosecutor's summation was improper in that she dropped a stand-up cut-out of a body representing the victim and simulated a shooting. No objection was made to this, no curative instruction requested and no prejudice claimed, and so it is unpreserved for appellate review ( see: People v Boyce , 54 AD3d 1052 ; People v Biscombe , 54 AD3d 1051; People v Lanier, 53 AD3d 588; People v Adam , 50 AD3d 1153 ; People v Francis , 49 AD3d 552 ).The motion is, therefore, denied on this ground.
D. The Burglary Predicate
In this indictment defendant is charged with Murder in the First Degree under Penal Law Section 125.27 (1)(a)(vii) which defines first degree murder as intentionally causing the death of a person and "the victim was killed while the defendant was in the course of committing . . . burglary in the first or second degree . . .". Defendant argues that his conviction cannot stand under this section of the law since the People's theory is that the crime defendant intended to commit when he unlawfully entered the building was the victim's murder, citing People v Cahill , 2 NY3d 14 . The People counter that the jury could have found any number of crimes as the predicate for the burglary, and that it is impermissible to speculate on the jury's deliberations. As with the burglary charge, the People also contend that no requirement exists to expand the pattern criminal jury instructions for Murder in the First Degree.
Although the People's position is reasonable and would, under other circumstances prevail, such is not the case here. For although the defense did posit predicate crimes other than the victim's murder for the burglary, the jury was not instructed that it could not convict the defendant of first degree murder if they found that the defendant unlawfully entered the premises with the intent to kill Mr. Saintine, and defendant was entitled to such a charge. It is moreover likely that the jury convicted the defendant based on this belief. That being the case ". . . the conviction cannot stand because the burglary carried no intent other than to commit the murder" ( People v Cahill, supra). Because of this an appellate court would require a modification of the verdict as a matter of law. The defendant's conviction of Murder in the First Degree must therefore be reduced to Murder in the Second Degree ( People v Glanda , 5 AD3d 945 ). In all other respects the verdict stands.
This constitutes the Decision and Order of the court.