People v. Kellogg

• Decision Date: 23 December 1994
• Citation: 210 A.D.2d 912,621 N.Y.S.2d 418
• Parties: The PEOPLE of the State of New York, Respondent, v. Laurie L. KELLOGG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 418

621 N.Y.S.2d 418

210 A.D.2d 912

The PEOPLE of the State of New York, Respondent, v. Laurie L. KELLOGG, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 23, 1994.

Peter Orville, Vestal, for appellant.

John Cirando (special prosecutor), Syracuse, for respondent.

Before BALIO, J.P., and LAWTON, WESLEY, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting her of manslaughter in the first degree, burglary in the first degree, felony murder in the second degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree. That judgment stems from the participation of defendant in the shooting of her husband by Denver McDowell while her husband was sleeping at his Seneca Lake cottage.

We reject the contention of defendant that the jury verdicts acquitting her of intentional murder in the second degree and convicting her of burglary in the first degree are repugnant. Our review is limited to whether the elements of the crimes, as charged to the jury, are inherently inconsistent (see, People v. Tucker, 55 N.Y.2d 1, 6-8, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081). The trial court instructed the jury that, in order to find defendant guilty of burglary in the first degree as an accessory, the People were required to prove that, at the time of unlawful entry, she shared McDowell's intent to commit intentional murder. The court repeatedly instructed the jury that the burglary was complete once McDowell unlawfully entered the cottage with the intent to commit murder. With respect to the intentional murder charge, the jury was instructed that defendant must share the intent to kill her husband at the time McDowell fired the shot. Given that charge, those jury verdicts are not repugnant.

We likewise conclude that the verdicts convicting defendant of manslaughter in the first degree and acquitting her of conspiracy in the first, second, third and fourth degrees are not repugnant. A defendant may be an accessory to manslaughter without entering into an agreement with others that such crime be committed (People v. Tyler, 111 A.D.2d 528, 529-530, 489 N.Y.S.2d 619).

The People presented legally sufficient evidence to prove that McDowell was neither licensed nor privileged to enter the cottage, and thus to support the jury verdict finding defendant guilty of burglary in the first degree. The cottage was owned by the victim and his siblings. Defendant was not an owner, and, as the victim's spouse, was a mere licensee with respect to the premises (see, Phelps v. Phelps, 143 N.Y. 197, 38 N.E. 280). Defendant testified that her husband hated McDowell and that he would not allow McDowell inside the marital residence in Pennsylvania or inside the cottage at Seneca Lake. In our view, that evidence warrants the inference that the victim, as a co-owner, did not permit defendant to allow McDowell into the residence and that his entry on the night of the shooting was unauthorized.

During the trial, the jury foreperson suffered a heart attack and was replaced by the first alternate juror. The court properly determined that the alternate replaced the discharged juror for all purposes, including assumption of the role of foreperson (see, CPL 270.35; People v. Rosa, 122 Misc.2d 905, 471 N.Y.S.2d 793).

The court did not commit reversible error in refusing to excuse juror number 8 for cause. Defendant did not exercise a peremptory challenge to excuse that juror and failed to exhaust all of her preemptory challenges during jury selection (see, CPL 270.20[2]; People v. Pitsley, 185 A.D.2d 645, 586 N.Y.S.2d 170, lv. denied 81 N.Y.2d 792, 594 N.Y.S.2d 739, 610 N.E.2d 412).

Although the sentencing court erred in proceeding with a reading...