People v. Casseus

• Decision Date: 27 August 2014
• Citation: 2014 N.Y. Slip Op. 05997,120 A.D.3d 828,991 N.Y.S.2d 147
• Parties: The PEOPLE, etc., respondent, v. Drew CASSEUS, appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 828

991 N.Y.S.2d 147

2014 N.Y. Slip Op. 05997

The PEOPLE, etc., respondent,

v.Drew CASSEUS, appellant.

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

Aug. 27, 2014.

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

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Anne Grady, Michael Shollar, and Morrie I. Kleinbart of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered February 27, 2012, convicting him of murder in the second degree, attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's convictions arose from an incident in which his friend, Jonathan Vazquez, and the complainant, Thomas Re, became involved in a fistfight. During the fight, when it became clear that Vazquez was losing the contest, the defendant fired several gunshots in the direction of the combatants. One of the bullets struck Re in the leg, while another killed Vazquez. The defendant ultimately was convicted, inter alia, of attempted murder in the second degree based on his shooting at Re, and murder in the second degree, under a theory of transferred intent, for the killing of Vazquez.

The defendant's contention that the evidence was legally insufficient to support his convictions of murder in the second degree and attempted murder in the second degree is unpreserved for appellate review ( seeCPL 470.05; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of these crimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt as to these convictions was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the People's contention, the defendant's assertion that the trial court should have granted his request for a justification charge is preserved for appellate review. However, the trial court properly declined to give a justification charge since, viewing the record in the light most favorable to the defendant, there was no reasonable view of the evidence to support such an instruction ( seePenal Law § 35.15[2][a]; People v. Reynoso, 73 N.Y.2d 816, 818, 537 N.Y.S.2d 113, 534 N.E.2d 30; People v. Watts, 57 N.Y.2d 299, 301–302, 456 N.Y.S.2d 677, 442 N.E.2d 1188; People v. Cotsifas, 100 A.D.3d 1015, 954 N.Y.S.2d 219; People v. Small, 80 A.D.3d 786, 786–787, 915 N.Y.S.2d 501; People v. Dickerson, 67 A.D.3d 700, 700–701, 889 N.Y.S.2d 199; People v. Ryan, 55 A.D.3d 960, 963, 865 N.Y.S.2d 146; People v. Ojar, 38 A.D.3d 684, 685, 832 N.Y.S.2d 250).

The defendant's contention that he was deprived of the effective assistance of counsel because his trial attorney failed to request submission of manslaughter in the first degree as a lesser included offense of intentional murder is unpersuasive. Rather, counsel's decision reflected a legitimate trial strategy of a reasonably competent attorney ( see People v. Evans, 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457; People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S.2d 903, 488 N.E.2d 834), since it was consistent with the defendant's statements to the police that he merely fired his weapon for the purpose of breaking up the fight, and not with the intent to kill or injure anyone. By declining to request the lesser included offense of manslaughter in the first degree and seeking only the submission of manslaughter in the second degree, trial counsel logically elected to remove from the jury's consideration the possibility of a “compromise” guilty verdict on the former offense. Hence, if convinced of the defendant's culpability for the homicide but not that he possessed the mens rea for murder in the second degree, the jurors could only have found that he acted recklessly, as the defendant's own statements suggested. The fact that this reasonable strategy proved unsuccessful does not equate with ineffective assistance of counsel, and the defendant's assertions to the contrary “ ‘confus[e] true ineffectiveness with mere losing tactics and accord[ ] undue significance to retrospective analysis' ” (People v. McGee, 20 N.Y.3d 513, 521, 964 N.Y.S.2d 73, 986 N.E.2d 907, quoting People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584). In this regard, we do not share our dissenting colleague's view that had manslaughter in the first degree been charged, the outcome of the trial may have been more favorable to the defendant. The jury's separate conviction of the defendant for the attempted intentional murder of Re reflected its finding that the defendant acted with the specific intent to kill when shooting at Re. There is no reason to believe that the jurors would have found that he contemporaneously fired the errant shot that killed Vazquez with a less culpable mens rea of intent to seriously injure Re so as to support a conviction of manslaughter in the first degree. Thus, under the circumstances, and upon a review of the entire record, we conclude that the defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MASTRO, J.P., DICKERSON, and LOTT JJ., concur.

HINDS–RADIX, J., dissents and votes to reverse the judgment appealed from, on the law and as a matter of discretion in the interest of justice, and to order a new trial, with the following memorandum:

On the evening of December 28, 2010, the defendant and his friend Jonathan Vazquez, along with some other friends, were standing in front of a corner store in Staten Island. As Thomas Re exited the store, Vazquez challenged him to a fight. Re testified at trial that he took his shirt off to show Vazquez that he was unarmed and was going to fight using his...