People v. Aviles

• Decision Date: 12 December 1991
• Citation: 577 N.Y.S.2d 782,178 A.D.2d 201
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan AVILES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 782

577 N.Y.S.2d 782

178 A.D.2d 201

The PEOPLE of the State of New York, Respondent, v. Juan AVILES, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 12, 1991.

Before SULLIVAN, J.P., and KUPFERMAN, ROSS, KASSAL and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (George Covington, J.) rendered May 23, 1989, convicting defendant, after a jury trial, of murder in the second degree and two counts of attempted murder in the second degree and sentencing him to concurrent indeterminate terms of imprisonment of from twenty years to life and ten to twenty years, respectively, affirmed.

Since in our view there is no reasonable view of the evidence to support a finding that defendant committed the lesser offenses of first or second degree manslaughter but not the greater offense of second degree murder and the trial court's determination not to submit the lesser offenses as lesser included offenses was therefore proper (see, People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376), we affirm. While, as the dissent properly notes, the fact that Perez's wounds proved to be fatal is not dispositive on the issue of intent to kill, the circumstances of this case led to no other reasonable conclusion. Perez was on the floor fighting with Rosello when defendant twice proclaimed, "I'm Papito, nobody beat [sic ] Papito." Defendant then lifted Rosello up and plunged a five to ten inch "Rambo" knife into the side of Perez's chest, leaving a wound four and one-half to five inches deep, while Perez was lying on the ground. When Perez exclaimed, "what you doing, what you doing," defendant stabbed Perez a second time, leaving him with another wound, this one four inches deep. Upon realizing that he stabbed Perez and not Rosello, defendant began to chase Rosello, who was able to escape. Contrary to the dissent's conclusion, these circumstances can hardly be described as "equivocal" and do not present the picture of a person making "desperate and random slashing motions in the direction of several different persons."

The defendant's conduct in People v. Gonzalez (151 A.D.2d 601, 542 N.Y.S.2d 359), where he shot a small caliber handgun from a distance of between forty and fifty feet, stands in stark contrast to this case, where, at close range, defendant twice plunged a knife four to five inches into his victim, once into his chest. Thus, the court's conclusion in Gonzalez that the defendant's conduct was "sufficiently equivocal" to warrant a finding that he committed manslaughter in the first degree and not murder in the second degree(id. at 602, 542 N.Y.S.2d 359) lends scant support for the position of defendant herein.

The dissent's reliance on People v. Butler, 57 N.Y.2d 664, 454 N.Y.S.2d 70, 439 N.E.2d 879, rev'ng for the reasons stated in the dissent of Justice Sandler, 86 A.D.2d 811, 452 N.Y.S.2d 582, is similarly unavailing. While the court in that case upheld the submission of manslaughter in the first degree as a lesser included offense of murder in the second degree despite the fact that the fatal shots were fired at close range, the court expressly noted that "with the possible exception of a contact wound, not present in this case, it is a matter of common experience that people who fire handguns do not always hit precisely the intended target." (86 A.D.2d at 815, 452 N.Y.S.2d 582.) The same cannot be said of a person plunging a five to ten inch knife into a target so close by.

Nor does People v. Hayden, 166 A.D.2d 371, 561 N.Y.S.2d 177, support the dissent's position. In Hayden, in which there was evidence that, during a struggle over a knife, defendant, who was not the initial aggressor, stabbed one of two men who was beating him, the court allowed submission of manslaughter in the first degree as a lesser included offense of intentional murder in the second degree. The court found it "significant" that the defendant stabbed the victim only once. (166 A.D.2d, id. at 372, 561 N.Y.S.2d at 178.) In this case, however, defendant, the clear aggressor, stabbed the victim twice, once after the victim asked defendant what he was doing. There is nothing in these circumstances which suggests that defendant intended only to injure seriously and not to kill his victim.

Nor, in our view, is there a reasonable view of the evidence to support a finding that the stab wounds were recklessly rather than intentionally inflicted. The dissent's suggestion that in the "tangle" of bodies defendant may not have been able to see where his knife was directed is belied by the uncontroverted evidence that his acts were deliberate: he grabbed Rosello, lifted him up and stabbed Perez in the side as Perez tried to get up. While defendant may have been mistaken as to the identity of the person he was stabbing, that hardly constitutes an exonerating factor since the intent element is transferred. (See, Penal Law 125.25[1].)

Finally, despite the dissent's conclusion that there was testimony that defendant may have been under the influence of drugs, there was no evidence that defendant had actually ingested drugs or that his capacity to form the necessary intent had been affected. (See, People v. Rodriguez, 76 N.Y.2d 918, 921, 563 N.Y.S.2d 48, 564 N.E.2d 658.)

The remaining grounds relied upon by the dissent have either not been preserved for appellate review or are without merit.

All concur except KASSAL and SMITH, JJ., who dissent in a memorandum by KASSAL, J. as follows:

KASSAL, Justice (dissenting).

At approximately 9:00 p.m. on May 13, 1987, a street fight broke out between defendant and several men. Testimony at trial established that it began as a dispute of the "are-you-talking-to-me" variety between defendant and one Marcus "Reggie" Razor and escalated into violence when Razor left, but then returned with Hakim Richardson and Hector Calderon. Razor had told these friends that he had had a "beef" with defendant and was "getting ready to fight" him. The three, who were later joined by Eric Rosello, began to look for defendant. When they found him outside of 175 Willis Avenue, defendant, who looked "dusted", became upset because, one witness' testimony suggested, "somebody pulled something out".

The trial testimony further established that defendant then ran to his car and retrieved a five-to-ten inch knife, causing the four men to scatter and run as he returned, brandishing it. Defendant then got into his car and drove it in the direction of the fleeing men. As they split up, Calderon ran into a store and tried to get "a stick or something", but was refused. When he emerged, defendant began to pursue him on foot while making "slashing" motions with the knife.

The fight continued as Calderon obtained a thick bicycle-locking chain from Rosello and began swinging it at defendant, who grabbed it and began to pull Calderon towards him. Calderon dropped the chain and retreated, but then came back with a bat he was given by Razor's brother, which he used to strike defendant on the head. Defendant grabbed the bat and, once again, Calderon released his weapon as defendant, still holding the knife, pulled him closer. Calderon then fled toward a pool hall, where someone grabbed him from behind, and Rosello came to Calderon's aid by hitting the attacker and knocking him to the ground.

It was at this point that the decedent, Benigno Perez, joined the fracas in an attempt to assist defendant, and began fighting with Rosello. Pushing his way through a crowd of people trying to break up the fight between Perez and Rosello, who were by then struggling on the ground, defendant stabbed Perez twice before realizing that he had stabbed the "wrong man", and a "surprised" look came over his face. When Police Officer Richard Miller arrived on the scene shortly thereafter, defendant was placing Benigno Perez in his car to take him to Lincoln Hospital. Officer Miller spoke with people on the scene and then went to the hospital, where he took defendant into custody.

The primary issue on appeal is whether the trial court erred in denying defendant's written request that the charges of first and second degree manslaughter be submitted to the jury as lesser included offenses of murder in the second degree, and that attempted assault in the second degree be charged as a lesser included offense of the attempted murder counts. In seeking the lesser included charge of manslaughter in the first degree, counsel argued that there was a reasonable view of the evidence that defendant's actions evinced an intent to do serious physical injury to Rosello, see P.L. § 125.20, rather than cause his death. ¹ The court denied the application, holding that there was no reasonable view of the evidence that would support the lesser charge.

Following summations, defense counsel renewed his request for the submission of lesser included offenses. The court again denied the application, observing that defense theories underpinning the lesser charges were inconsistent with the defense offered at trial, namely that it was Calderon, and not defendant, who had stabbed Perez.

My examination of this record leads me to conclude that it was error for the trial court to have denied defendant's application for submission of manslaughter in the first and second degrees as lesser included offenses of murder in the second degree, and of attempted assault in the second degree as a lesser included offense of attempted murder in the second degree, and I accordingly dissent.

The law is well settled that, upon the request of either party, a lesser included offense must be submitted to the jury if it meets a two-pronged test establishing (1) that it is theoretically impossible to commit the greater crime without concomitantly committing, by the same conduct, the lesser crime; and (2) that there is a reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the...