People v. Deresky

• Decision Date: 16 February 1988
• Parties: The PEOPLE, etc., Respondent, v. Peter DERESKY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 49

525 N.Y.S.2d 49

137 A.D.2d 704

The PEOPLE, etc., Respondent, v. Peter DERESKY, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 16, 1988.

Russell C. Morea, Kew Gardens, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Emil Bricker, of counsel), for respondent.

Before LAWRENCE, J.P., and KUNZEMAN, KOOPER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (O'Dwyer, J.), rendered September 23, 1982, convicting him of attempted murder in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On June 25, 1981, police officers Nunns and Hofelich received a radio transmission directing them to an address in Queens where a man was reported to be harassing two women with a gun. The uniformed officers proceeded to that address and knocked on the door. In response to an occupant's query, the officers identified themselves as police officers. After a brief pause, the door of the apartment abruptly swung open revealing a man holding a shotgun which pointed towards the floor. Before the officers could draw their own weapons or take cover, the defendant raised the gun to shoulder level and aimed it at their heads. Officer Hofelich saw the defendant's hands near the trigger housing of the gun and heard a sound he associated with the trigger being pulled on a gun that misfires. Although Officer Nunns's eyes were transfixed on the barrel of the gun, he heard the familiar click of a trigger being pulled. The defendant's female companion testified that she watched as the defendant jumped up and back while pulling the trigger with his right forefinger. She also heard the resultant metallic click. The shotgun, however, failed to fire. As the officers retreated in an attempt to protect themselves, the defendant escaped out of a rear window, taking the gun with him.

Contrary to the defendant's contentions, the record discloses that there was more than legally sufficient evidence to sustain the jury's verdict convicting the defendant of two counts of attempted murder in the first degree (see, Penal Law § 125.27[1]; § 110.00; see also, People v. Perez, 64 N.Y.2d 868, 487 N.Y.S.2d 550, 476 N.E.2d 995). The jury was entitled to find that the defendant intended to murder the uniformed police officers based on the testimony that he aimed the gun at their heads, pulled the trigger hard enough so that three eyewitnesses heard the resultant click, jumped up and back in anticipation of the force of the discharge, and fled when the gun failed to discharge. It is no defense to a prosecution for an attempt to murder a police officer that the crime was factually impossible because the gun malfunctioned (see, Penal Law § 110.10). Although the defendant may not have succeeded in his purpose, his conduct came "within dangerous proximity to the criminal end to be attained" and was sufficient to support a conviction for attempted murder ( see, People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094, rearg. denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194).

In addition, we find that the sanction imposed on the People by the trial court as a penalty for the inadvertent destruction of the gun constituted a proper exercise of discretion and minimized the prejudice, if any, to the defendant ( see, People v. Bay, 67 N.Y.2d 787, 501 N.Y.S.2d 19, 492 N.E.2d 127; People v. Shapiro, 117 A.D.2d 688, 689, 498 N.Y.S.2d 428, lv. denied 67 N.Y.2d 950, 502 N.Y.S.2d 1044, 494 N.E.2d 129). The suppression of the ballistics reports and the preclusion of expert testimony resulted in the dismissal of one count of the indictment and acquittal on another involving weapons possession. More importantly, the...