People v. Bruno

• Decision Date: 22 April 2015
• Docket Number: 2012-03205, Ind. No. 5436/09.
• Citation: 2015 N.Y. Slip Op. 03377,6 N.Y.S.3d 656,127 A.D.3d 1101
• Parties: The PEOPLE, etc., respondent, v. Scott BRUNO, appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1101

6 N.Y.S.3d 656

2015 N.Y. Slip Op. 03377

The PEOPLE, etc., respondent

v.Scott BRUNO, appellant.

2012-03205, Ind. No. 5436/09.

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

April 22, 2015.

Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered February 9, 2012, convicting him of manslaughter in the second degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The top count of the indictment charged the defendant with manslaughter in the first degree (Penal Law § 125.20[1] ). At a nonjury trial, the defendant's mens rea at the time of the incident was vigorously contested. The Supreme Court found the defendant not guilty of manslaughter in the first degree, but found him guilty of manslaughter in the second degree and criminal possession of a weapon in the fourth degree.

The defendant contends that his conviction of manslaughter in the second degree was against the weight of the evidence. Upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to that count was not against the weight of the evidence (see People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contention that he was deprived of the effective assistance of counsel is without merit. The defendant's claim is based upon counsel's withdrawal, during his summation, of his prior application, made at the commencement of this nonjury trial, to include the charge of criminally negligent homicide as a lesser-included offense of manslaughter in the second degree, and upon counsel's concession that the People had proven the elements of manslaughter in the second degree beyond a reasonable doubt. “What constitutes effective assistance is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation” (People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). The critical issue is whether, viewing the evidence, the law, and the circumstances of the case together as of the time of representation, defense counsel provided meaningful representation (see People v. Hobot, 84 N.Y.2d 1021, 622 N.Y.S.2d 675, 646 N.E.2d 1102 ; People v. Benn, 68 N.Y.2d 941, 510 N.Y.S.2d 81, 502 N.E.2d 996 ; People v. Baldi, 54 N.Y.2d at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Moreover, under the federal standard, to prevail on a claim of ineffective assistance of counsel, a “defendant must show that counsel's representation fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; see People v. Bodden, 82 A.D.3d 781, 918 N.Y.S.2d 141 ).

Here, there is no reasonable view of the evidence, viewed in the light most favorable to the defendant (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ), that would support a finding that the defendant acted with criminal negligence (see People v. Cameron, 244 A.D.2d 350, 351, 663 N.Y.S.2d 657 ; People v. Lucas, 238 A.D.2d 524, 525, 656 N.Y.S.2d 662 ; People v. Williams, 192 A.D.2d 737, 738, 597 N.Y.S.2d 116 ). The victim was killed when the defendant pointed a gun at him and pulled the trigger. The evidence established that, just before the fatal gunshot, the gun had been fired at least twice in the defendant's presence. Moreover, the victim's two friends testified that the defendant had been pointing the gun at the victim and his two friends and that the victim told the defendant to stop “playing” with the gun. Immediately thereafter, the defendant pointed the gun at the victim and pulled the trigger. At trial, the parties stipulated that a ballistics expert would testify that the magazine was in the gun and one round of ammunition was in the chamber when it was recovered at the scene. This evidence established the reckless, rather than negligent, nature of the defendant's actions (see Matter of Koron B., 303 A.D.2d 314, 757 N.Y.S.2d 265 ; People v. Reynoso, 231 A.D.2d 454, 647 N.Y.S.2d 208 ; People v. Johnson, 205 A.D.2d 707, 613 N.Y.S.2d 429 ). Even if the finder of fact determined that the defendant had been intoxicated, an issue as to which there was conflicting testimony, such intoxication would not reduce the defendant's culpability; voluntary intoxication constitutes reckless conduct (see People v. Walker, 58 A.D.2d 737, 738, 396 N.Y.S.2d 121 ). Moreover, it was within the trial court's power to consider criminally negligent homicide as a lesser-included offense of manslaughter in the second degree if the court had determined that manslaughter in the second degree had not been proven, but that there was a reasonable view of the evidence that the defendant had committed the lesser-included offense (see CPL §§ 300.50[1] ; 320.20[4]; People v. Henderson, 41 N.Y.2d 233, 235, 391 N.Y.S.2d 563, 359 N.E.2d 1357 ). Thus, defense counsel's withdrawal of his application for consideration of criminally negligent homicide was not error (see People v. Walston, 101 A.D.3d 1156, 1156–1157, 956 N.Y.S.2d 543, mod. on other grounds 23 N.Y.3d 986, 991 N.Y.S.2d 24, 14 N.E.3d 377 ; People v....