People v. Baptiste

• Decision Date: 05 June 2003
• Citation: 760 N.Y.S.2d 594,306 A.D.2d 562
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>MALCOLM BAPTISTE, Appellant.
• Court: New York Supreme Court — Appellate Division

306 A.D.2d 562

760 N.Y.S.2d 594

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.MALCOLM BAPTISTE, Appellant.

Kane, J.

Decided June 5, 2003.

Cardona, P.J., Spain, Carpinello and Lahtinen, JJ., concur.

Kane, J.

On August 11, 1995, defendant and his former girlfriend, Jeanette Cortijo, engaged in a verbal altercation, after which defendant uttered that he was tired of her and "I am going to kill her." In the early morning hours of August 12, 1995, the two had another altercation where defendant pushed Cortijo into her car. She then drove her car at defendant, causing him to fall off of the bicycle he was riding. He again stated that he was tired of her and was going to kill her. Defendant then retrieved his 9 millimeter gun from the apartment at 945 Emmett Street in the City of Schenectady, Schenectady County, where he lived with codefendant Jamal Dennis and three women. He and Dennis located Cortijo, leading to another verbal altercation. While the two men attempted to walk away, Cortijo followed them in her car, drove away, then quickly returned. At that point, at approximately 3:30 A.M., defendant shot into Cortijo's car multiple times, killing her and her passenger, Chakima Dickerson. Defendant and Dennis then fled and returned to their nearby apartment, where defendant admitted to one of the women that he killed Cortijo. At approximately 4:00 A.M., defendant called a girlfriend in Brooklyn to pick him up.

An individual informed the police that he saw three men running in the direction of an alley next to 945 Emmett Street at about the time of the shootings. Police saw defendant, Dennis and others hurriedly loading a cab from Brooklyn at that location at approximately 9:00 A.M. Police questioned these individuals regarding their actions and the cab was searched, revealing nothing. The vehicle then left for Brooklyn. Later that morning, a downstairs resident of 945 Emmett Street called the police. She had found a shirt wrapped around a gun clip in the backyard bushes, which had not been there around 1:00 A.M. The clip contained 9 millimeter bullets of the same brand as the casings recovered from the crime scene. As a result of this discovery, the Schenectady police sent a bulletin to the State Police requesting that they stop the cab and detain its occupants. Several State Police cars stopped the vehicle on the Thruway. Troopers approached with guns drawn, requesting that everyone exit the vehicle. Each occupant was patted down, handcuffed and then transported to the State Police barracks in separate police cars. At the barracks, defendant was shackled to the wall in an investigation room and read his Miranda rights; he sat for about two hours and then was questioned. At first, defendant denied knowing anything about the incident. Questioning continued, intermittently, for several hours, during which time defendant was provided food, beverages and cigarettes. Meanwhile, in Schenectady, police located a 9 millimeter Glock pistol and empty clip in a vacant lot two blocks from the murder scene and one block from 945 Emmett Street.

At about 5:30 P.M., an investigator spoke with defendant, after again reading him his Miranda rights. Questioning elicited that defendant knew Cortijo, she was a former girlfriend and they had argued the previous night. A few hours later, defendant made an incriminating, but also exculpatory, oral statement to the investigator. The investigator then went through defendant's story again, reducing it to writing, which defendant reviewed and signed at about 11:30 P.M.

Defendant was charged by indictment with 11 counts, including two counts of murder in the second degree in violation of Penal Law § 125.25 (1), two counts of murder in the second degree in violation of Penal Law § 125.25 (2), and one count of criminal possession of a weapon in the second degree in violation of Penal Law § 265.03. Following an extensive Huntley hearing, County Court found the stop and subsequent arrest legal, rendering defendant's statements admissible. After a jury trial, during which several counts of the indictment were dismissed, defendant was convicted of two counts of second degree murder in violation of Penal Law § 125.25 (2) (depraved mind murder) and one count of criminal possession of a weapon in the second degree.^[*] Defense counsel unsuccessfully moved for a new trial, pursuant to CPL 330.30. County Court sentenced defendant to two consecutive prison terms of 25 years to life for the murder counts, and a concurrent prison term of 5 to 15 years for the weapon count. A subsequent CPL article 440 motion was denied without a hearing. Defendant appeals.

Defendant first contends that County Court erred by charging the jury on depraved mind murder, because the evidence presented at trial could not support that charge. A trial court may submit inconsistent counts of an indictment to a jury, provided the prosecution has offered legally sufficient evidence to support both charges and they are submitted in the alternative (see CPL 300.40 [5]; People v Jarrett, 118 AD2d 657, 658 [1986], lv denied 67 NY2d 944 [1986]; see also People v Gonzalez, 160 AD2d 502, 504 [1990], lv denied 76 NY2d 857 [1990] [inconsistent murder counts]).

A person commits murder under Penal Law § 125.25 (2) when, "[u]nder circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." This "differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct" (People v Register, 60 NY2d 270, 274 [1983], cert denied 466 US 953 [1984]; see People v Mettler, 147 AD2d 849, 850 [1989], lv denied 74 NY2d 666 [1989]). Shooting a person at close range may be deemed reckless rather than intentional, especially if the "shooting itself appeared to have been sudden, spontaneous and not well-designed to cause imminent death" (People v Sanchez, 98 NY2d 373, 377 [2002] [depraved mind murder although victim shot at point-blank range]; see People v Register, supra). Depraved indifference may be found where an individual intended to cause injury, but recklessly disregarded a substantial risk of death (see People v Meehan, 229 AD2d 715, 718 [1996], lv denied 89 NY2d 926 [1996]; compare People v Register, supra [the defendant brought loaded gun to bar, said he was going to kill someone that night, and shot into crowded bar]; People v Watson, 299 AD2d 735 [2002], lv denied 99 NY2d 633 [2003] [shots fired into crowd outside bar]).

Viewing the evidence in the light most favorable to the People (see People v Sanchez, supra at 377; People v Roe, 74 NY2d 20, 23 [1989]; People v Sawyer, 274 AD2d 603, 606-607 [2000], affd 96 NY2d 815 [2001]), the jury here could rationally have determined that defendant killed Cortijo and Dickerson recklessly, rather than intentionally. The sole eyewitness to the shooting testified that after defendant and Cortijo argued, defendant walked away. She followed him in her car, continuing to have words with him. Only when Cortijo returned after driving away did defendant shoot. Defendant did not approach the car, but remained on the sidewalk and fired at the car. The jury could have believed that if defendant had initially intended to kill Cortijo, his walking away from the earlier encounter evidenced an abandonment of that intent. When Cortijo resumed the confrontation, it was not unreasonable for the jury to conclude that defendant acted suddenly and spontaneously, without intent to kill, but rather fired into the car intending to scare or injure Cortijo. Defendant's extreme recklessness both created and disregarded a grave risk of death to the people in the car under circumstances which evinced a depraved indifference to human life (compare People v Russell, 91 NY2d 280 [1998] [depraved indifference murder where innocent bystander killed by stray bullet]; People v Demand, 268 AD2d 901 [2000], lv denied 95 NY2d 795 [2000] [same]). There was legally sufficient evidence to support the charges for depraved mind murder and they were properly submitted to the jury (see People v Gonzalez, supra; People v Jarrett, supra).

Defendant further contends that his incriminating statements to police should have been suppressed as they were obtained subsequent to an arrest effectuated without probable cause. Probable cause exists where "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10 [2] [giving definition of "reasonable cause to believe a person has committed an offense," such as to permit a warrantless arrest under CPL 140.10 (1)]). Initially, the cab was legally stopped on the Thruway because the police had reasonable suspicion to detain defendant and Dennis for questioning about the homicides (see People v Chase, 85 NY2d 493, 501 [1995]; People v Beverly, 220 AD2d 881, 883 [1995], lv denied 87 NY2d 898 [1995]). In determining whether the situation rose to the next level, so that the suspects were subjected to a de facto arrest, County Court must look at what a reasonable person, innocent of any crime, would have thought if he or she had been in the same position (see People v Hicks, 68 NY2d 234, 240 [1986]; People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]; People v Ripic, 182 AD2d 226, 231 [1992], appeal dismissed 81 NY2d 776 [1993]). Defendant was removed from a vehicle at gunpoint by a multitude of police officers, immediately handcuffed, transported to the State Police barracks in a police car, shackled to the wall inside the barracks and read his Miranda rights several times; no one...