People v. Casado

• Decision Date: 05 October 2012
• Citation: 2012 N.Y. Slip Op. 06676,951 N.Y.S.2d 797,99 A.D.3d 1208
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose L. CASADO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 1208
951 N.Y.S.2d 797
2012 N.Y. Slip Op. 06676

The PEOPLE of the State of New York, Respondent,
v.
Jose L. CASADO, Defendant–Appellant.

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

Oct. 5, 2012.

Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

[99 A.D.3d 1208]Defendant appeals from a judgment convicting [99 A.D.3d 1209]him upon a jury verdict of, inter

[951 N.Y.S.2d 798]

alia, attempted aggravated murder of a police officer (Penal Law §§ 110.00, 125.26[1][a][i]; [b] ) and attempted aggravated assault upon a police officer (§§ 110.00, 120.11). Defendant contends that his conviction of those two counts should be reversed and those counts should be dismissed as duplicitous because the evidence at trial establishes that there were two separate and distinct shooting incidents. We reject that contention. We note at the outset that defendant is correct that the two shooting incidents constitute distinct criminal acts as opposed to a single, continuing transaction ( see People v. Boykins, 85 A.D.3d 1554, 1555, 924 N.Y.S.2d 711,lv. denied17 N.Y.3d 814, 929 N.Y.S.2d 802, 954 N.E.2d 93;cf. People v. Alonzo, 16 N.Y.3d 267, 270–271, 920 N.Y.S.2d 302, 945 N.E.2d 495;People v. Kaid, 43 A.D.3d 1077, 1079–1080, 842 N.Y.S.2d 55). The first criminal act occurred when defendant fired a shot in the direction of an unmarked police car from the driveway of a residence, and the second criminal act occurred when defendant fired two shots at Officer Ryan Hickey while being pursued by him into the backyard of the residence. Nevertheless, the indictment was not rendered duplicitous on that ground because only the latter act is sufficient to constitute the crimes of attempted aggravated murder of a police officer and attempted aggravated assault upon a police officer as charged in counts one and two of the indictment ( cf. Boykins, 85 A.D.3d at 1555, 924 N.Y.S.2d 711).

Count one of the indictment, as amplified by the bill of particulars, alleges in relevant part that, “[o]n or about July 8, 2008, [at] approximately 11:15 PM, at or near 78 Evergreen Street, in the City of Rochester, ... [defendant], with intent to cause the death of another person, Officer Ryan Hickey, ... attempted to cause the death of Officer Hickey by firing shots from a loaded handgun toward him ” (emphasis added). Count two of the indictment, as amplified by the bill of particulars, alleged in relevant part that, “[o]n or about July 8, 2008, [at] approximately 11:15 PM, at or near 78 Evergreen Street, in the City of Rochester, ... [defendant], with intent to cause serious physical injury to a person he knew or reasonably should have known to be a police officer engaged in the course of performing his official duties, Officer Ryan Hickey, ... attempted to cause such injury by means of a deadly weapon, to wit, a loaded handgun” (emphasis added). Thus, counts one and two required the People to prove that defendant intended to cause death and serious physical injury to Officer Hickey, respectively ( seePenal Law §§ 120.11, 125.26 [1][a][i] ). The evidence that defendant fired the first shot in the direction of the unmarked police vehicle, however, does not support the conclusion that defendant intended to kill or seriously injure any particular police officer ( see generally People v. Ramos, 19 N.Y.3d 133, 135, 946 N.Y.S.2d 83, 969 N.E.2d 199). Rather, [99 A.D.3d 1210]each of the four officers in that vehicle testified that defendant fired a single shot at the vehicle or in the direction of the officers generally before fleeing. Indeed, the officer who had been driving the vehicle testified that, after he opened the door and put one foot out, “ we were shot at” (emphasis added). Another officer testified that, while exiting the vehicle, he “observed the defendant raise a revolver and fire one shot at us ” (emphasis added). Officer Hickey similarly testified that he saw defendant fire “one shot at us ” (emphasis added). When asked where defendant was aiming, Officer Hickey replied “I can tell you the muzzle flash was pointing in our direction. I don't know exactly where he was aiming the gun” (emphasis added).

By contrast, the trial testimony was clear that, after defendant fled up the driveway and Officer Hickey began to

[951 N.Y.S.2d 799]

pursue him, defendant fired two shots at Officer Hickey. Officer Hickey testified unequivocally that the two shots were directed at him: “He fired two shots at me. I could clearly see the muzzle flashes coming in my direction” (emphasis added). He explained: “I was chasing [defendant], and I could see the form of his body turn towards me, at which point he fired at me with the two shots.” Officer Hickey's testimony to that effect was corroborated by other witnesses.

In light of the foregoing, we...