People v. Flanders

• Citation: 974 N.Y.S.2d 692,111 A.D.3d 1263,2013 N.Y. Slip Op. 07290
• Parties: The PEOPLE of the State of New York, Respondent, v. Pernell A. FLANDERS, Defendant–Appellant.
• Decision Date: 08 November 2013
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1263
974 N.Y.S.2d 692
2013 N.Y. Slip Op. 07290

The PEOPLE of the State of New York, Respondent,
v.
Pernell A. FLANDERS, Defendant–Appellant.

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

Nov. 8, 2013.

[974 N.Y.S.2d 693]

John J. Raspante, Utica, for Defendant–Appellant.

Pernell A. Flanders, Defendant–Appellant Pro Se.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS AND VALENTINO, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), assault in the first degree (§ 120.10[1] ) and reckless endangerment in the first degree (§ 120.25). The evidence at trial established that, on the date in question, defendant and a passenger in his vehicle approached the victim and his fiancée. A physical altercation ensued during which defendant struck the victim with a .380 caliber semi-automatic pistol. Defendant then shot the pistol at the victim and in the vicinity of the victim's fiancée. Defendant returned to his vehicle to obtain a second firearm, i.e., a .22 caliber rifle, which he then used to shoot at the victim, in the vicinity of the victim's fiancée. The victim sustained multiple gunshot wounds to the neck, chin, shoulder and leg. With respect to the assault and reckless endangerment charges, the indictment alleged that defendant committed those offenses with “a .380 semi-automatic pistol and a .22 rifle” (emphasis added).

During its charge, County Court instructed the jury that it was alleged that defendant committed assault in the first degree by intentionally injuring the victim with a “380 semi-automatic pistol and a 22 caliber rifle” (emphasis added). The court further instructed the jury that it was alleged that defendant committed reckless endangerment in the first degree by firing “a 380 semi-automatic pistol and a 22 rifle in the direction of [the victim's fiancée]” (emphasis added). The jurors sent a note asking if they must believe that both firearms were involved in order to find defendant guilty of the assault and reckless endangerment charges. The court instructed the jury that it “must be proven to your satisfaction beyond a reasonable doubt, that either of the weapons were involved or both, as long as you find that there was a deadly weapon involved.” The jury thereafter returned a verdict of guilty on all counts charged in the indictment.

Defendant now contends that the court's instruction to the jury constructively amended the indictment, rendering it duplicitous. We reject that contention. It is well established that, “ ‘[w]here an offense may be committed by doing any one

[974 N.Y.S.2d 694]

of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others' ” ( People v. Charles, 61 N.Y.2d 321, 327–328, 473 N.Y.S.2d 941, 462 N.E.2d 118). Contrary to the position of the dissent, we conclude that the evidence at trial established that the multiple shots fired from two separate firearms “constitute[d] a single uninterrupted assault rather than a series of distinct criminal acts ..., and the assault ‘occurred over a short time frame, without apparent abeyance, and was triggered by a single incident of anger’ ” ( People v. Snyder, 100 A.D.3d 1367, 1367, 953 N.Y.S.2d 430,lv. denied21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285 quoting People v. Hines, 39 A.D.3d 968, 969–970, 833 N.Y.S.2d 721,lv. denied9 N.Y.3d 876, 842 N.Y.S.2d 788, 874 N.E.2d 755;cf. People v. Bauman, 12 N.Y.3d 152, 155–156, 878 N.Y.S.2d 235, 905 N.E.2d 1164;People v. Casado, 99 A.D.3d 1208, 1209, 951 N.Y.S.2d 797,lv. denied20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620;see generally People v. Alonzo, 16 N.Y.3d 267, 270, 920 N.Y.S.2d 302, 945 N.E.2d 495). “The fact that more than one dangerous instrument allegedly was used by the defendant[ ], and more than one [shot] was [fired] causing the [victim] several injuries, does not transform this single criminal incident into multiple assaults or acts of [reckless endangerment] which must be charged by separate counts” ( People v. Kaid, 43 A.D.3d 1077, 1080, 842 N.Y.S.2d 55;cf. People v. Negron, 229 A.D.2d 340, 340–341, 645 N.Y.S.2d 301). We respectfully disagree with the position of the dissent that there were separate impulses with an abeyance between them. Rather, the evidence established that defendant assaulted the victim and his fiancée in an attempt to seek revenge for the fiancée's alleged assault on defendant's sister. There was one motive and one impulse: to seek revenge. We see no distinction between a situation in which an assaulting defendant takes the time to reload one weapon and one in which the assaulting defendant takes the time to obtain a second weapon with the single impulse of continuing the ongoing assault.

With respect to the count of reckless endangerment in the first degree, the conduct encompassed by that count was the act of endangering the life of the victim's fiancée, who was in the vicinity of the victim the entire time defendant was shooting at the victim. “Where ... a crime by its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time, the indictment may charge the continuing offense in a single count” ( People v. First Meridian Planning Corp., 86 N.Y.2d 608, 615–616, 635 N.Y.S.2d 144, 658 N.E.2d 1017). Under the circumstances of this case, the crime of reckless endangerment “involved a continuing offense” and could therefore encompass multiple acts in one count without being duplicitous ( People v. Hernandez, 235 A.D.2d 367, 368, 653 N.Y.S.2d 322,lv. denied89 N.Y.2d 1012, 658 N.Y.S.2d 250, 680 N.E.2d 624). In our view, the fact that the multiple shots were fired from two separate firearms did not transform this continuing offense into two separate offenses. We disagree with the dissent's assumption that the fiancée was “potentially out of harm's way” when she sought refuge in a vehicle during the barrage of gunshots inasmuch as the vehicle was still in the vicinity of the gunshots. “[R]eckless endangerment is a conduct-specific ... crime,” and here the conduct underlying that count of the indictment was the firing of multiple gunshots in the

[974 N.Y.S.2d 695]

vicinity of the fiancée ( People v. Estella, 107 A.D.3d 1029, 1032, 967 N.Y.S.2d 195,lv. denied21 N.Y.3d 1042, 972 N.Y.S.2d 539, 995 N.E.2d 855;cf. People v. Dann, 17 A.D.3d 1152, 1153–1154, 793 N.Y.S.2d 852,lv. denied5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265). We thus conclude that the indictment was not rendered duplicitous by the court's instruction that the jury could find defendant guilty of the assault and reckless endangerment charges if it found that defendant used either firearm or both.

We reject the view of the dissent that “ ‘there were two distinct shooting incidents' ” (quoting People v. Boykins, 85 A.D.3d 1554, 1555, 924 N.Y.S.2d 711,lv. denied17 N.Y.3d 814, 929 N.Y.S.2d 802, 954 N.E.2d 93). Although the published decision in Boykins does not address the particular facts of the crimes, “[w]e can and do take judicial notice of the record on appeal” in that case ( People v. Hill, 30 A.D.2d 976, 976, 294 N.Y.S.2d 597;see People v. Crawford, 55 A.D.3d 1335, 1337, 864 N.Y.S.2d 820,lv. denied11 N.Y.3d 896, 873 N.Y.S.2d 272, 901 N.E.2d 766). In Boykins, the defendant was charged with one count of attempted murder, but the evidence established that there were two distinct shooting incidents directed at the victim. The first occurred when the defendant and the codefendant first arrived at the victim's residence. At that point the victim was shot in the stomach area. The defendant and the codefendant left the residence, and another resident of the home locked the door behind them. At some time thereafter, either the...