People v. Gallagher

• Decision Date: 14 April 1986
• Citation: 501 N.Y.S.2d 355,116 A.D.2d 299
• Parties: The PEOPLE, etc., Respondent, v. Daniel GALLAGHER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 355

501 N.Y.S.2d 355

116 A.D.2d 299

The PEOPLE, etc., Respondent, v. Daniel GALLAGHER, Appellant.

Supreme Court, Appellate Division Second Department.

April 14, 1986.

Rappaport & Frost, New York City (Nathan R. Sobel and Freda S. Nisnewitz, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, of counsel; Paul Schrier, on brief), for respondent.

Before BRACKEN, J.P., and RUBIN, LAWRENCE and KUNZEMAN, JJ.

PER CURIAM.

The principal question which divides the court on this appeal is whether a reversal is warranted on the ground that the defendant was convicted of both intentional murder (Penal Law § 125.25[1] ) and manslaughter in the second degree (Penal Law § 125.15[1] ) for the fatal shooting of one person. While a new trial is not required on this basis, in the interest of justice, the judgment appealed from should be modified by reversing the conviction of manslaughter in the second degree.

The defendant was charged by the Grand Jury of Suffolk County with two counts of murder in the second degree, arising out of the shooting death of Jack Sweeney, which climaxed a St. Patrick's Day celebration, marked by the defendant's imbibing of significant quantities of liquor over a 24-hour period.

The first count of the indictment accused the defendant of the intentional murder of Sweeney (Penal Law § 125.25[1] ) and the second count alleged that the defendant had caused Sweeney's death under circumstances evincing a depraved indifference to human life, by recklessly engaging in conduct which created a grave risk of death (Penal Law § 125.25[2] ).

Viewing the evidence adduced at the trial in the light most favorable to the prosecution, as we must (see, People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288; People v. Tucker, 102 A.D.2d 535, 536, 477 N.Y.S.2d 386), we are in unanimous agreement that any rational trier of fact would be justified in finding that the defendant was guilty, beyond a reasonable doubt, of either of the crimes of which he was convicted, intentional murder and reckless manslaughter (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932; People v. Lopez, 111 A.D.2d 186, 489 N.Y.S.2d 12). The facts with respect thereto are fully set forth in the opinion of our dissenting colleague.

Prior to the submission of this case to the jury, the trial court, during the presummation conference, announced its intention to submit both murder counts to the jury, and in addition, to submit manslaughter in the first degree (Penal Law § 125.20[1] ) as a lesser included offense under the intentional murder count, and manslaughter in the second degree (Penal Law § 125.15[1] ) as a lesser included offense under the depraved indifference murder count. Defense counsel objected to this proposed charge, contending, inter alia, that the defendant could not be convicted under both counts of murder, and that the two murder counts should be submitted only in the alternative. The objection was renewed following the court's charge to the jury.

The jury thereafter deliberated and returned a verdict convicting the defendant of intentional murder under count one, as charged, and reckless manslaughter under count two, as a lesser included offense of depraved indifference murder.

After the jury's discharge, defense counsel moved unsuccessfully to set aside the verdict on the ground of inconsistency. This motion was renewed prior to sentencing, and was again denied.

On appeal the defendant argues that the trial court was required by statute to submit to the jury the various counts in the alternative, and that its failure to do so requires vacatur of both convictions. Moreover, it is contended that the verdict was fatally inconsistent or repugnant, inasmuch as it is factually impossible for the defendant to have both "intentionally" and "recklessly" caused the death of Sweeney.

We disagree with the defendant's contention that the two counts charged in the indictment, intentional murder (Penal Law § 125.25[1] ) and depraved indifference murder (Penal Law § 125.25 [2] ) were inconsistent counts which should have been submitted to the jury in the alternative (CPL 300.30[5]; 300.40[5] ).

The two counts were "non-inclusory concurrent counts". They were "concurrent counts" (CPL 300.30[3] ), because both offenses were alleged to have been committed through a single act (the shooting of the victim) and, therefore, any sentences which might have been imposed thereon would necessarily have to be concurrent (see, Penal Law § 70.25[2] ). However, the two counts were "non-inclusory", in that both counts charged crimes of the same degree, murder in the second degree, but each crime required proof of an element not essential to the other and hence, neither was a lesser included offense of the other (CPL 300.30[4]; 1.20[37]; cf. People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544). Since there was no mandatory requirement that the two counts of the indictment be submitted to the jury in the alternative, we find that the trial court did not abuse its discretion, as a matter of law, by submitting both counts to the jury with instructions that it return a separate verdict as to each (CPL 300.40[3][a] ).

In addition, the trial court properly submitted a lesser included offense under each of the two indictment counts (CPL 300.50[1]; 1.20[37] ) and the jury was correctly instructed to consider each lesser included offense in the alternative to its respective greater offense (CPL 300.50[1], [4] ).

While reckless manslaughter (Penal Law § 125.15[1] ) is a lesser included offense of intentional murder (People v. Murray, 40 N.Y.2d 327, 335, 386 N.Y.S.2d 691, 353 N.E.2d 605, cert. denied 430 U.S. 948, 97 S.Ct. 1586, 51 L.Ed.2d 796; People v. Green, 56 N.Y.2d 427, 433, 452 N.Y.S.2d 389, 437 N.E.2d 1146, rearg. denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343), the two crimes are not mutually exclusive or self-contradictory, inasmuch as the lower mental state required to prove reckless manslaughter is included and subsumed within the higher mental state required to elevate the crime to intentional murder (People v. Green, supra, 56 N.Y.2d at pp. 432-433, 452 N.Y.S.2d 389, 437 N.E.2d 1146; People v. Stanfield, 36 N.Y.2d 467, 471, 369 N.Y.S.2d 118, 330 N.E.2d 75). The defendant argues that one who acts intentionally, i.e., with the conscious objective of bringing about a particular result, cannot, simultaneously act recklessly, i.e., with conscious disregard of a substantial and unjustifiable risk that such result will occur (see, People v. Green, supra, 56 N.Y.2d at p. 439, 452 N.Y.S.2d 389, 437 N.E.2d 1146 [dissenting opn of Gabrielli, J.]; see also, 1 CJI [NY], 14.02, at p. 733-734). Nevertheless, the Court of Appeals has considered and rejected that argument, holding, as a matter of law, that where two crimes require the same act and result and differ only as to the required mental state, it is impossible to commit the crime requiring the higher culpable mental state without concomitantly committing the lesser crime (People v. Green, supra; People v. Perez, 45 N.Y.2d 204, 209-210, 408 N.Y.S.2d 343, 380 N.E.2d 174; People v. Stanfield, supra ). Thus, we find nothing inherently self-contradictory in the jury's verdict in this case, by which the defendant was found guilty of both intentional murder and reckless manslaughter. Simply put, the finding of guilt as to one of the two counts does not exclude the same finding as to the other. Therefore, the defendant's repugnancy or inherent inconsistency claim must fail.

Finally, it is noted that after the trial court indicated that it would submit both the intentional murder and the depraved indifference murder counts to the jury, defense counsel could, but did not specifically request that reckless manslaughter be submitted to the jury as a lesser included offense of the intentional murder count. Therefore, the court's failure to so instruct the jury does not constitute error (CPL 300.50[1], [2]; People v. Green, supra, 56 N.Y.2d at p. 430, 452 N.Y.S.2d 389, 437 N.E.2d 1146). But, "a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may, because of statutory definitions be theorized as constituting separate criminal acts" (People v. Perez, 45 N.Y.2d 204, 209, 408 N.Y.S.2d 343, 380 N.E.2d 174, supra ). Thus, under the facts of this case, the conviction of the lesser included count of manslaughter in the second degree should be reversed and the sentence imposed thereon vacated (see, People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579; People v. Grier, 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471; People v. Oglesby, 84 A.D.2d 541, 443 N.Y.S.2d 105; People v. Reid, 58 A.D.2d 611, 58 A.D.2d 611).

We agree with our dissenting colleague with respect to the other issues raised by the defendant.

Judgment of the Supreme Court, Suffolk County (Stark, J.), rendered February 2, 1982, modified, as a matter of discretion in the interest of justice, by reversing the conviction of manslaughter in the second degree and vacating the sentence imposed thereon. As so modified, judgment affirmed.

Justice Kunzeman had been substituted for former Justice, now Judge Titone (see, Judiciary Law § 21; Wittleder v. Citizen's Elec. Illuminating Co. of Brooklyn, 47 App.Div. 543).

RUBIN, LAWRENCE and KUNZEMAN, JJ., concur.

BRACKEN, J.P., concurs in part and dissents in part and votes to reverse the judgment, on the law, order a new trial on the count of murder in the second degree (Penal Law § 125.25[1] ), and to otherwise dismiss the indictment without prejudice to the People to re-present any appropriate charges to another Grand Jury, with an opinion.

BRACKEN, Justice Presiding (concurring in part and dissenting in part).

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