People v. Danielson

Decision Date13 December 2007
Docket Number170.,171.
Citation9 N.Y.3d 342,880 N.E.2d 1,849 N.Y.S.2d 480
PartiesThe PEOPLE of the State of New York, Respondent, v. Khalil DANIELSON, Also Known as Khali Danielson, Appellant. The People of the State of New York, Respondent, v. Alexander Pasley, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

KAYE, Chief Judge.

These two appeals call upon us to determine the scope of weight of the evidence review when a defendant has failed to preserve a challenge to the legal sufficiency of his conviction. In particular, we are asked whether weight of the evidence review requires assessment of the elements of the crime for which defendant is convicted, or whether such review would simply be tantamount to back-door sufficiency review.

Facts

In the first of the two appeals, People v. Danielson, the People presented evidence at trial that defendant, together with fellow gang members Gerard Miller and Oman Green, plotted to kill Kenneth Andrews for "false flagging" — wearing a rival gang's bandana. The three arranged to take Andrews to a secluded area in Seton Falls Park in the Bronx to murder him.

The next day in the park, the group (including other residents of the group home in which they all lived) drank alcohol and smoked cigarettes and marijuana. Later, defendant, Miller and Green argued with Andrews about his false flagging, and the three shot Andrews. One of the group members not involved in the shooting testified that defendant was the first to draw his pistol and shoot Andrews eight times from about two feet away; that Miller next drew his handgun and shot the victim; and that Miller passed his firearm to Green, who shot Andrews once in the head. Green, also a prosecution witness, testified that Miller drew his weapon first and fired the eight shots; that defendant drew his pistol and shot Andrews four times; and that Miller passed Green his handgun, and Green shot Andrews in the head as Andrews lay on the ground. A medical examiner testified the cause of death was a shot either to Andrews' head or to his abdomen.

A grand jury indicted defendant, Miller and Green for acting in concert to commit two counts of murder in the second degree (intentional and depraved indifference) and additional charges. At defendant's trial, defense counsel never claimed that the evidence proved only an intentional killing. The trial court, without objection, charged the jury on both intentional and depraved indifference murder as defined by People v. Register, 60 N.Y.2d

[849 N.Y.S.2d 347]

270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983). The jury acquitted defendant of intentional murder but convicted him of depraved indifference murder.

The Appellate Division affirmed defendant's conviction, one Justice dissenting. Although all five Justices recognized that defendant had not preserved a legal sufficiency claim, they disagreed on how to perform the weight of the evidence review. The majority noted that, on appeal, defendant had argued only that the evidence did not support the verdict because of inconsistencies in the testimony; he did not claim that the weight of the evidence proved only intentional murder. Thus, limiting its consideration to defendant's appellate argument, the court confined its weight review to credibility issues and concluded that, though the witnesses recalled defendant's actions during the crime differently, the evidence nonetheless supported the jury's verdict. In dissent, Justice Mazzarelli urged that a reviewing court must weigh the evidence in light of the elements of the crime and that the evidence here could support only intentional murder. Justice Mazzarelli granted leave to appeal to this Court.

In the second appeal, People v. Pasley, the People presented evidence that a group of friends, after taking the subway from Brooklyn to Manhattan's Times Square, encountered defendant coming up the staircase at the 42nd Street subway station. After pushing between the victim, Michael Bishop, and another member of the group, defendant demanded Bishop's chain, reached for it and then with his other hand made a quick slashing motion across Bishop's neck. Defendant fled. When the police caught defendant, they recovered the chain from his pocket, and later discovered a bloody box cutter in the back of the patrol car in which he had been taken to the precinct. Bishop bled to death.

Defendant testified that, while on the subway ride from Brooklyn to Manhattan, he had an argument with one of the group members. Fearing for his safety, defendant, at the 42nd Street station, waited for the group by the token booth. As the men in the group surrounded him, defendant put his hand in his pocket. Defendant thought he saw something silver in Bishop's hand, so he preemptively started swinging his box cutter at the group. Defendant denied that he intended to rob anyone but could not explain how Bishop's chain wound up in his pocket. A grand jury indicted defendant for, among other charges, murder in the first degree (intentional felony murder) and three counts of murder in the second degree (intentional,

[849 N.Y.S.2d 348]

depraved indifference and felony murder). At trial, defense counsel did not argue that the evidence proved only an intentional homicide. The trial court, in accordance with Register, charged the jury that depraved indifference murder required a reckless mens rea with objective circumstances showing "a depraved indifference to human life."

The jury acquitted defendant of first-degree and second-degree intentional murder but convicted him of depraved indifference murder. Prior to sentencing, defendant filed a CPL 330.30 motion claiming that the evidence supported only an intentional murder theory, and that the evidence was legally insufficient to support depraved indifference murder, for the first time citing People v. Hafeez, 100 N.Y.2d 253, 762 N.Y.S.2d 572, 792 N.E.2d 1060 (2003). The trial court denied the motion. On appeal, defendant argued that the evidence supported only a theory of intentional murder or at most reckless, not depraved indifference, murder. The Appellate Division affirmed defendant's conviction. The majority refused to conduct an element-based weight of the evidence review since defendant failed to preserve his legal sufficiency claim. Instead, it weighed witness credibility and determined that the conviction was not against the weight of the evidence. Justice Mazzarelli concurred, concluding that even using an element-based weight review, defendant's conviction was proper, and she...

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