People v. Breckenridge, 6347

CourtNew York Supreme Court Appellate Division
Citation162 A.D.3d 425,79 N.Y.S.3d 122
Decision Date07 June 2018
Parties The PEOPLE of the State of New York, Respondent, v. Travis BRECKENRIDGE, Defendant–Appellant.
Docket NumberInd. 4460/11,6347

162 A.D.3d 425
79 N.Y.S.3d 122

The PEOPLE of the State of New York, Respondent,
v.
Travis BRECKENRIDGE, Defendant–Appellant.

6347
Ind. 4460/11

Supreme Court, Appellate Division, First Department, New York.

ENTERED: JUNE 7, 2018


79 N.Y.S.3d 123

Christina Swarns, Office of the Appellate Defender, New York (Katherine M.A. Pecore of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Megan DeMarco of counsel), respondent.

Sweeny, J.P., Richter, Webber, Gesmer, Moulton, JJ.

Judgment, Supreme Court, New York County (Michael J. Obus, J. at CPL article 730 hearings; Laura A. Ward, J. at jury trial and sentencing), rendered September 3, 2014, convicting defendant of assault in the first degree and criminal possession of a weapon in the second degree (two counts), and sentencing him to concurrent terms of 15, 10, and 10 years, respectively, modified, as a matter of discretion in the interest of justice, to the extent of vacating the assault conviction and remanding for a new trial on that count, and otherwise affirmed.

As in cases such as People v. Velez , 131 A.D.3d 129, 13 N.Y.S.3d 354 [1st Dept. 2015], the court's jury charge failed to convey that an acquittal on the top count of attempted second-degree murder based on a finding of justification would preclude consideration of the count of first-degree assault. We find that this error warrants reversal of the assault conviction in the interest of justice, and we reject our dissenting colleague's contention that the error was harmless. In Velez , we held that, "[b]ecause there is no way of knowing whether the acquittal of the top count of attempted murder in the second degree was based on a finding of justification by the jury, the two counts of the indictment that resulted in conviction must be reversed" ( Velez , 131 A.D.3d at 134, 13 N.Y.S.3d 354 ).

Our dissenting colleague takes the position that the jury's acquittal on the top count of attempted murder in the second degree could not possibly have been based on justification. We disagree. Given the testimony of an eyewitness that the victim was running toward defendant holding a knife when defendant fired the weapon, a jury may well have concluded that defendant's conduct was justified. Thus, it cannot be said that there was "overwhelming evidence disproving the justification defense and no reasonable possibility that the verdict would have been different had the charge been correctly given" ( People v. Petty , 7 N.Y.3d 277, 286, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006] ).

"While the jury may have acquitted on the top charge without relying on defendant's justification defense ... it is nevertheless impossible to discern whether acquittal of the top count ... was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts" ( People v. Rodriguez , 143 A.D.3d 497, 498, 39 N.Y.S.3d 416 [1st Dept. 2016] [internal quotation marks omitted], lv dismissed 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017] ; People v. Rowley , 138 A.D.3d 577, 578, 28 N.Y.S.3d 601 [1st Dept. 2016], lv denied 27 N.Y.3d 1138, 39 N.Y.S.3d 120, 61 N.E.3d 519 [2016] ; see also People v. Colasuonno , 135 A.D.3d 418, 419–420, 23 N.Y.S.3d 179 [1st Dept. 2016] ).

The court properly found defendant fit to proceed to trial following CPL article 730 examinations. Psychiatric reports

79 N.Y.S.3d 124

and defendant's own statements in court showed that he "evinced an understanding of the purpose of a trial, the actors in a trial, their roles, the nature of the charges against him, and the severity of a potential conviction and sentence" ( People v. Phillips , 16 N.Y.3d 510, 518, 924 N.Y.S.2d 4, 948 N.E.2d 428 [2011] ). The court reasonably credited experts who found that defendant's psychiatric symptoms had been alleviated by compliance with his medication regimen, thus rendering his past history an unreliable indicator of his present competency. Defendant's "questionable decisions" as to trial strategy ( People v. Snyder , 29 A.D.3d 310, 310, 813 N.Y.S.2d 433 [1st Dept. 2006], lv denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809 [2006] ), such as presenting inconsistent defenses and denying any participation in the shooting despite the strong evidence of his guilt, did not establish that he was suffering from delusions preventing him from having a "factual understanding of the proceedings against him" ( People v. Mendez , 1 N.Y.3d 15, 19, 769 N.Y.S.2d 162, 801 N.E.2d 382 [2003] [internal quotation marks omitted] ) or from cooperating with his attorney. "Moreover, the [hearing] court had the opportunity to observe defendant's behavior and to evaluate the testimony of the psychiatrists in that context" ( id. at 20, 769 N.Y.S.2d 162, 801 N.E.2d 382 ).

We perceive no basis for reducing the sentences imposed on the remaining counts.

All concur except Webber, J. who dissents in part in a memorandum as follows:

WEBBER, J. (dissenting in part)

While I concur that we are bound by this Court's prior rulings in People v. Velez , 131 A.D.3d 129, 13 N.Y.S.3d 354 [1st Dept. 2015], and its progeny, I disagree that such adherence mandates remand for a new trial on the charge of assault in the first degree. Accordingly, I would affirm the conviction in all respects.

Lonnie Payne testified that on September 5, 2011 at approximately 11:45 a.m., he was walking east on West 127th Street, between Seventh and Eighth Avenues, in New York County, toward his apartment. While he was about halfway between Seventh and Eighth Avenues, he saw two men "pop[ ]out" from between two parked cars, about 25 feet ahead of him. One of those men wore glasses and dark clothing, and held a black coat over his left arm. Payne recognized him as defendant, having bought loose cigarettes from defendant at a nearby street corner. The two men faced each other and seemed to be "wrestling" or "slap-fighting." Less than one minute after the men emerged, Payne heard three to five "bangs" or "pops," then saw feathers flying out of the coat being held by defendant, who quickly walked away, toward Eighth Avenue. Payne approached the other man, whom he did not know, and who was later identified as Leo O'Brien, and saw that he was bleeding profusely from his abdomen. O'Brien briefly walked but collapsed near the corner of West 127th Street and Seventh Avenue. Payne testified that he remained with O'Brien throughout, and after calling 911 stayed until the police and the ambulance arrived. According to Payne, he did not see a knife, broken bottle or sharp object in O'Brien's hand or on his person before or after the shooting. O'Brien sustained two gunshot wounds to his abdomen and one to his left arm.

Detective Joseph Carinha testified that on September 5, 2011, after having been assigned the shooting, he and Detective Antonio Rivera went to defendant's apartment located at 277 West 127th Street, apartment 2G. Detective Donna Torres

79 N.Y.S.3d 125

and Officer Diana Rodriguez went to the side of the building corresponding to the "G" units. As Detective Carinha knocked on the door to apartment 2G and announced that he was a police officer, Detective Torres and P.O. Rodriguez observed a hand open the bathroom window on the second floor and drop a black bag onto the grass-covered ground. Defendant exited the apartment approximately five minutes after Detective Carinha knocked and was arrested at the scene. The police found no one else in the apartment. Detective Torres identified defendant's apartment as the one from which the bag was thrown. Police Officer Elmer Lopez retrieved a loaded semiautomatic 9 millimeter pistol from the bag. There were two rounds in the magazine and one in the chamber. While there were no discernable fingerprints found on the gun, defendant's DNA was found on it.

Testimony was elicited that pursuant to a search warrant of defendant's apartment, a black down jacket that was torn in multiple places and covered in feathers was recovered. Cartridge cases were found at the scene; however, no weapons, including a knife, were found. The cartridge cases were determined to have been ejected from the 9 millimeter pistol found in the bag tossed from defendant's apartment window.

Finally, the People introduced surveillance video which showed defendant wearing a white T-shirt, white shorts, and sneakers, entering the location of 277 West 127th Street at 11:40 a.m. Four minutes later, defendant...

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5 practice notes
  • People v. Daniels, 109319
    • United States
    • New York Supreme Court Appellate Division
    • July 3, 2019
    ...of justification so as to mandate acquittal on the ... lesser counts" to which justification also applied ( People v. Breckenridge , 162 A.D.3d 425, 426, 79 N.Y.S.3d 122 [2018] [internal quotation marks, ellipsis and citation omitted], appeal dismissed 32 N.Y.3d 1072, 88 N.Y.S.3d 412, 113 N......
  • People v. Wah, 8503
    • United States
    • New York Supreme Court Appellate Division
    • April 23, 2019
    ...where the court's jury charge failed to comply with Velez , even where the claim was unpreserved (see e.g. People v. Breckenridge , 162 A.D.3d 425, 79 N.Y.S.3d 122 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1169, 97 N.Y.S.3d 628, 121 N.E.3d 255 [2018] ; People v. Marcucci , 158 A.D.3d 434, 67......
  • Hayes v. Gaceur, 6790
    • United States
    • New York Supreme Court Appellate Division
    • June 7, 2018
    ...529 ). Plaintiff failed to raise an issue of fact as to whether she suffered injury to her thoracic or lumbar spine as a result of 79 N.Y.S.3d 122the accident, since she presented no objective evidence of injury causally related to the accident, but only findings of tenderness and limitatio......
  • People v. Musaid, 8136
    • United States
    • New York Supreme Court Appellate Division
    • January 17, 2019
    ...with his medication regimen, thus rendering his past history an unreliable indicator of his present competency" ( People v. Breckenridge, 162 A.D.3d 425, 426, 79 N.Y.S.3d 122 [1st Dept. 2018], appeal dismissed 32 N.Y.3d 1072, 88 N.Y.S.3d 412, 113 N.E.3d 468, 2018 N.Y. Slip. Op. 88505 [2018]......
  • Request a trial to view additional results
5 cases
  • People v. Daniels, 109319
    • United States
    • New York Supreme Court Appellate Division
    • July 3, 2019
    ...of justification so as to mandate acquittal on the ... lesser counts" to which justification also applied ( People v. Breckenridge , 162 A.D.3d 425, 426, 79 N.Y.S.3d 122 [2018] [internal quotation marks, ellipsis and citation omitted], appeal dismissed 32 N.Y.3d 1072, 88 N.Y.S.3d 412, 113 N......
  • People v. Wah, 8503
    • United States
    • New York Supreme Court Appellate Division
    • April 23, 2019
    ...where the court's jury charge failed to comply with Velez , even where the claim was unpreserved (see e.g. People v. Breckenridge , 162 A.D.3d 425, 79 N.Y.S.3d 122 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1169, 97 N.Y.S.3d 628, 121 N.E.3d 255 [2018] ; People v. Marcucci , 158 A.D.3d 434, 67......
  • Hayes v. Gaceur, 6790
    • United States
    • New York Supreme Court Appellate Division
    • June 7, 2018
    ...529 ). Plaintiff failed to raise an issue of fact as to whether she suffered injury to her thoracic or lumbar spine as a result of 79 N.Y.S.3d 122the accident, since she presented no objective evidence of injury causally related to the accident, but only findings of tenderness and limitatio......
  • People v. Musaid, 8136
    • United States
    • New York Supreme Court Appellate Division
    • January 17, 2019
    ...with his medication regimen, thus rendering his past history an unreliable indicator of his present competency" ( People v. Breckenridge, 162 A.D.3d 425, 426, 79 N.Y.S.3d 122 [1st Dept. 2018], appeal dismissed 32 N.Y.3d 1072, 88 N.Y.S.3d 412, 113 N.E.3d 468, 2018 N.Y. Slip. Op. 88505 [2018]......
  • Request a trial to view additional results

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