People v. Fernandez

• Decision Date: 14 November 1996
• Citation: 88 N.Y.2d 777,650 N.Y.S.2d 625,673 N.E.2d 910
• Parties: , 673 N.E.2d 910 The PEOPLE of the State of New York, Respondent, v. Julio FERNANDEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 625

650 N.Y.S.2d 625

88 N.Y.2d 777, 673 N.E.2d 910

The PEOPLE of the State of New York, Respondent, v. Julio FERNANDEZ, Appellant.

Court of Appeals of New York.

Argued Oct. 15, 1996.

Decided Nov. 14, 1996.

Mark W. Zeno, New York City, and Daniel L. Greenberg, Cambridge, MA, for appellant.

Robert T. Johnson, District Attorney, New York City (Nancy D. Killian and Joseph N. Ferdenzi, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

On this appeal we are asked by defendant to consider whether application of the doctrine of transferred intent renders attempted murder in the second degree a nonexistent crime under the circumstances presented. Concluding that the facts in this case do not implicate the transferred intent doctrine, we hold that defendant's conviction for attempted murder was properly affirmed.

On August 2, 1990, at approximately 2:00 a.m., Yanira Correa was walking with a group of teenaged friends in the vicinity of 164th Street and River Avenue in the Bronx after leaving a park. Correa was approached by defendant, who was an acquaintance. Defendant asked Correa to return to the park to speak to his brother, but she declined. Defendant then began firing a handgun in the air. A boy in Correa's group stated to defendant: "Why don't you shoot at us?" Defendant continued firing additional shots in the direction of the group of teens before running back to the park.

Approximately 15 minutes later, the group reached the vicinity of Grand Concourse and 164th Street. Defendant pulled up in a cab and exited the vehicle with a gun in his hand. Defendant fired three shots directly at the group, striking Correa in the chest, and then fled. Correa was seriously injured. Shortly thereafter, defendant was observed nearby removing a dark, blunt object from his pants and placing it in a garbage can. After responding to the scene, the police retrieved a nine millimeter automatic weapon from the garbage can, and defendant was arrested in the park. Defendant was charged with attempted murder in the second degree and reckless endangerment in the first degree, as well as with varying degrees of assault and criminal possession of a weapon. A jury trial ensued.

The prosecution was unable to identify during trial which member of Correa's group was defendant's precise target. Apparently believing that the jury would have to rely on the doctrine of transferred intent to convict defendant of attempted murder if Correa--the actual victim--was not the intended victim, the People requested that the court charge the jury on that doctrine. The court declined the request. The court instructed the jury that, to convict defendant of attempted murder in the second degree, the prosecution must prove beyond a reasonable doubt "[t]hat on or about August 2nd, 1990 * * * the defendant attempted to cause the death of [Correa] or another person in the group at 164th Street and the Grand Concourse, by shooting at him or her with a loaded pistol" and "[t]hat the defendant intended that the conduct cause the death of [Correa] or some other person in that group." Defendant did not object to this charge. The court reiterated, in response to several jury notes, that the intent element of an attempt would be satisfied where defendant's intent to kill was directed at "[Ms. Correa] or anyone else in the group." The jury found defendant guilty of attempted murder in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the second degree.

The Appellate Division affirmed. The Court rejected defendant's argument that the crime of attempted murder in the second degree under a "transferred intent" theory is a nonexistent crime. The Court concluded that, unlike manslaughter in the first degree and assault in the second degree, murder in the second degree "does not contain a strict liability element with respect to the proscribed result. Although the victim was unintended under [a transferred intent] theory, the result--death--was not." (215 A.D.2d 234, 234-235, 626 N.Y.S.2d 190.) The Appellate Division also concluded that, "the evidence was legally sufficient to establish that defendant attempted to kill one of the persons in the victim's group." (Id., at 235, 626 N.Y.S.2d 190.) The Court pointed to testimony establishing that defendant first fired shots in the air after being rebuffed by Correa to reveal his anger, left the scene after being goaded by one of Correa's friends to shoot at them, intercepted the group at a different location after changing his clothing, shot directly at Correa and her friends, and was observed moments later discarding the gun. Based on this proof, the Court determined that there was sufficient evidence that defendant "deliberately sought out the victim and her friends with the intention of killing one of them." (Id., at 235, 626 N.Y.S.2d 190.) Defendant's appeal reaches us by permission of a Judge of this Court, and we now affirm.

Defendant was convicted of an attempt to commit the substantive crime of second degree murder. A person is guilty of that crime when, "[w]ith intent to cause the death of another person, he causes the death of such person or of a third person " (Penal Law § 125.25[1] [emphasis supplied] ). Under this provision of the Penal Law, where the resulting death is of a third person who was not the defendant's intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed. In other words, the identity of the victim is irrelevant if the requisite intent to kill is established and death of a person results. In such cases, the defendant's intent to kill the intended victim is said to be "transferred" to the actual victim to establish all of the elements of the completed crime of intentional murder (see, 1 LaFave and Scott, Substantive Criminal Law §§ 3.11, 3.12 [1986] ).

The doctrine of "transferred intent" serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other "lucky mistake," the intended target was not the actual victim (People v. Birreuta, 162 Cal.App.3d 454, 460, 208 Cal.Rptr. 635, 639). The doctrine is rooted in the belief that "such a defendant is no less culpable than a murderer whose aim is good" (id.) and thus should be punished to the same extent (LaFave and Scott, Criminal Law § 35, at 252-257 [1972] ). One court has noted that "[t]he underlying rationale for the doctrine also suggests that transferred...