People v. Desordi

• Decision Date: 17 April 1997
• Citation: 238 A.D.2d 738,656 N.Y.S.2d 505
• Parties: The PEOPLE of the State of New York, Respondent, v. Victor DESORDI Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 505

656 N.Y.S.2d 505

238 A.D.2d 738

The PEOPLE of the State of New York, Respondent, v. Victor DESORDI Jr., Appellant.

Supreme Court, Appellate Division Third Department.

April 17, 1997.

Bruce R. Bryan, Syracuse, for appellant.

Donald F. Cerio Jr., District Attorney, Wampsville, for respondent.

Before WHITE, J.P., and CASEY, PETERS, SPAIN and CARPINELLO, JJ.

PETERS, Justice.

Appeal from a judgment of the County Court of Madison County (O'Brien III, J.), rendered June 26, 1995, upon a verdict convicting defendant of the crimes of murder in the second degree and assault in the first degree.

On October 7, 1994, David Eberst (hereinafter decedent), his brother Peter Eberst (hereinafter Eberst) and their friend Richard Havranek spent the evening socializing at various locations in the Town of Cazenovia, Madison County. At approximately 3:00 A.M., Eberst and Havranek drove together in Havranek's vehicle while decedent drove alone in his pickup truck. At about the same time, defendant and his three friends had left a party after an evening of socializing. As they were walking westerly toward the oncoming vehicles, decedent abruptly stopped, got out of his vehicle and angrily accused the defendant of throwing something at his truck. Defendant denied throwing anything and was initially conciliatory stating, "Why can't we be friends?"

The incident quickly escalated to a physical altercation between decedent and defendant. Within minutes, decedent was fatally wounded when he was stabbed through the heart. Defendant and Eberst then began fighting, causing Eberst to fall to the ground with defendant on top of him. As defendant was biting Eberst in the throat, witnesses attempted to pull defendant off him. Thereafter, Eberst was found to have suffered a single stab wound which collapsed his left lung. Defendant later returned to the scene with his mother and advised a police officer that he "thought he'd been involved in a fight and wished to speak to someone about it". At the police station, he gave both a written and videotaped statement after waiving his Miranda rights.

Defendant was indicted for the crimes of murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, assault in the first degree and two counts of assault in the second degree. Subsequent to the indictment, his counsel chose not to move to suppress his statement. A lengthy discussion took place in open court between County Court and defendant regarding his counsel's decision not to seek suppression of the statement. Defendant affirmatively stated that he discussed this matter with counsel and was in agreement with it. Counsel for defendant did, however, file extensive motions and arranged for neurological testing. After the court declined to accept a plea proposal, the case went to trial. Numerous witnesses testified that decedent was the initial aggressor. No witnesses, however, could testify to defendant stabbing either decedent or Eberst, but evidence indicated that he had been known to carry a knife in his sock, that the knife found at the scene was identified as defendant's and that no other individual involved had a weapon. Upon appeal, defendant raises numerous errors which he believes merit either a reversal of his conviction or a reduction of his sentence.

Defendant contends that the evidence was legally insufficient to convict him of depraved indifference murder and that the weight of the evidence demonstrated that he had acted in self-defense. We disagree. Viewing the evidence, as we must, in a light most favorable to the People (see, People v. Rossey, 89 N.Y.2d 970, 655 N.Y.S.2d 861, 678 N.E.2d 473; People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find it legally sufficient to establish defendant's guilt. As to the weight of the evidence, viewing it in a neutral light (see, People v. Carthrens, 171 A.D.2d 387, 577 N.Y.S.2d 249), we are satisfied that the trier of fact did not fail to "give [it] the weight it should be accorded" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Mindful that the credibility of witnesses, inferences and conclusions to be drawn from the evidence are for the jury to resolve (see, People v. Shannon, 105 A.D.2d 986, 481 N.Y.S.2d 820), the testimony of the disinterested witnesses was both consistent with the jury's verdict and credible. While defendant bolsters his claim of self-defense by contending that deadly physical force was used against him when his head was being beaten against the pavement by both decedent and Eberst, the physician who treated him after the incident testified that he had abrasions on the back of each elbow, a linear bruise along the right side of his face and a small laceration on the tip of his right small finger. Treatment, therefore, consisted merely of washing his wounds and placing a bandaid on the lacerations. Hence, a finding that he did not act in self-defense was consistent with the weight of the credible evidence.

In support of his ineffective assistance of counsel claim, defendant contends that due to his history of in-patient mental health treatment and evidence of a "blackout" on the night of the incident, his lawyer's failure to pursue the defense of mental disease or defect or to use his mental condition in mitigation constituted ineffective assistance of counsel. Moreover, he contends that due to his LSD and alcohol use on such night, the defense of diminished capacity should also have been proffered. Additionally, he argues that counsel should have moved to suppress his statement to the police.

What constitutes effective assistance of counsel "is not and cannot be fixed with precision, but varies according to the particular circumstances of each case" (People v. Rivera, 71 N.Y.2d...