People v. King

• Decision Date: 22 January 2015
• Citation: 1 N.Y.S.3d 569,124 A.D.3d 1064
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerry A. KING, Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1064

1 N.Y.S.3d 569

The PEOPLE of the State of New York, Respondent,

v.Gerry A. KING, Appellant.

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

Jan. 22, 2015.

Barrett D. Mack, Albany, for appellant, and appellant pro se.

James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered December 22, 2010, upon a verdict convicting defendant of the crime of murder in the second degree.

On November 15, 2009, defendant drove to the home of his stepfather (hereinafter the victim) and beat him to death. Defendant was apprehended two days later in Connecticut, at which time he confessed to assaulting the victim. He was charged in an indictment with murder in the second degree and, following a jury trial, was found guilty as charged. County Court sentenced defendant to a prison term of 25 years to life, and defendant now appeals.

We affirm. Defendant contends that the jury's verdict was not supported by legally sufficient evidence and, moreover, was against the weight of the evidence. A person is guilty of murder in the second degree when, "[w]ith intent to cause the death of another person, he [or she] causes the death of such person or of a third person" ( Penal Law § 125.25[1] ). Defendant admittedly assaulted the victim, but contends that he was intoxicated at the time of the murder and did not intend to cause the victim's death. As an initial matter, defendant's generalized motion to dismiss failed to preserve his legal sufficiency claim for our review, but we will nevertheless assess whether all elements of the charged crime were proven in the context of our weight of the evidence analysis (see People v. Rodriguez, 121 A.D.3d 1435, 1436, 995 N.Y.S.2d 785 [2014] ; People v. Gaudiosi, 110 A.D.3d 1347, 1348, 973 N.Y.S.2d 855 [2013], lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ). In conducting that review, we note that the requisite intent to kill "may be inferred from a defendant's actions and [the] surrounding circumstances" ( People v. Ford, 90 A.D.3d 1299, 1300, 935 N.Y.S.2d 368 [2011], lv. denied 18 N.Y.3d 994, 945 N.Y.S.2d 648, 968 N.E.2d 1004 [2012] ; accord People v. Kenyon, 108 A.D.3d 933, 937–938, 970 N.Y.S.2d 638 [2013], lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ). Moreover, "[w]hether an individual's level of intoxication negates the element of intent to commit a crime lies within the domain of the jury as the trier of fact" ( People v. Keller, 246 A.D.2d 828, 829, 667 N.Y.S.2d 814 [1998], lv. denied 91 N.Y.2d 1009, 676 N.Y.S.2d 137, 698 N.E.2d 966 [1998] ; see People v. Beaty, 22 N.Y.3d 918, 921, 977 N.Y.S.2d 172, 999 N.E.2d 535 [2013] ).

Defendant drank several beers prior to attacking the victim, but he prepared dinner and drove to the victim's residence to commit the attack without incident, and several individuals who interacted with him did not perceive him to be very drunk (see People v. Donohue, 123 A.D.2d 77, 81, 510 N.Y.S.2d 722 [1987], lv. denied 69 N.Y.2d 879, 515 N.Y.S.2d 1027, 507 N.E.2d 1097 [1987] ). Multiple witnesses also testified that defendant had a longstanding dislike for, and had repeatedly threatened to harm or kill, the victim. Indeed, defendant told one trial witness on the day of the murder that he was going to "take care of" the victim and, when he returned from the victim's residence, stated that he had "finally [done] it" and killed the victim. Defendant then, instead of summoning the authorities, engaged in elaborate efforts to conceal his involvement in the crime and fled the state. The jury could readily infer from this evidence that defendant was capable of forming the intent to cause the victim's death and, in fact, had done so. Defendant testified to the contrary, asserting that he was drunk when he went to the victim's residence and had a very spotty recollection of what had occurred there. The jury plainly did not believe defendant's version of events, however, and, deferring to its credibility determinations, we find that the verdict was not against the weight of the evidence (see People v. Kenyon, 108 A.D.3d at 938, 970 N.Y.S.2d 638 ; People v. Keller, 246 A.D.2d at 829, 667 N.Y.S.2d 814 ; see also People v. Donohue, 123 A.D.2d at 81, 510 N.Y.S.2d 722 ).

Defendant next asserts that County Court erred in refusing to charge the jury on the affirmative defense of extreme emotional disturbance. That defense would have permitted the jury to find defendant guilty of first degree manslaughter if he proved "by a preponderance of the evidence that the homicide was committed while [he] was ‘under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse’ " ( People v. Gonzalez, 22 N.Y.3d 539, 544–545, 983 N.Y.S.2d 208, 5 N.E.3d 1269 [2014], quoting Penal Law § 125.25[1][a] ; see People v. Pavone, 117 A.D.3d 1329, 1331, 986 N.Y.S.2d 674 [2014], lv. granted 24 N.Y.3d 963, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ). County Court was obliged to grant defendant's request for the charge if, viewing the evidence in the light most favorable to defendant, "the jury could reasonably conclude ... that, at the time of the homicide, the defendant ‘was affected by an extreme emotional disturbance, and that the disturbance was supported by a reasonable explanation or excuse rooted in the situation as he [or she] perceived it’ " ( People v. Gonzalez, 22 N.Y.3d at 545, 983 N.Y.S.2d 208, 5 N.E.3d 1269, quoting People v. McKenzie, 19 N.Y.3d 463, 466, 951 N.Y.S.2d 691, 976 N.E.2d 217 [2012] ). "That said, evidence demonstrating a defendant's high degree of self-control or the planned and deliberate character of the underlying attack, as well as any postcrime conduct suggesting that the defendant was in full command of his or her faculties and had consciousness of guilt, is entirely inconsistent with an extreme emotional disturbance defense" ( People v. Pavone, 117 A.D.3d at 1332, 986 N.Y.S.2d 674 [internal quotation marks and citations omitted] ).

Defendant had long been angry over his perceptions that the victim had dishonored his mother's memory and had behaved in a sexually inappropriate manner with various family members, but anger, without more, "do[es] not entitle a defendant to an extreme emotional disturbance charge" ( People v. Ross, 34 A.D.3d 1124, 1126, 826 N.Y.S.2d 769 [2006], lvs. denied 8 N.Y.3d 879, 832 N.Y.S.2d 492, 864 N.E.2d 622 [2007], 8 N.Y.3d 884, 832 N.Y.S.2d 497, 864 N.E.2d 627 [2007] ; see People v. Wells, 101 A.D.3d 1250, 1254, 955 N.Y.S.2d 684 [2012], lv. denied 20 N.Y.3d 1066, 962 N.Y.S.2d 617, 985 N.E.2d 927 [2013] ). Indeed, defendant had often expressed his desire to harm or kill the victim and deliberately traveled to the victim's residence to confront him on the day of the murder, all of which suggests that the attack was a planned one. That the attack was premeditated was also suggested by the testimony of the pathologist who performed an autopsy on the victim and found no evidence of "overkill," wherein a perpetrator inflicts injuries far beyond those required to kill. Defendant further acted rationally in the aftermath of the attack, repeatedly returning to the victim's residence to retrieve items that could be linked to him and to wipe away any fingerprints he left there, destroying or instructing others to conceal clothing that he had worn during the attack, and then fleeing the state. Indeed, far from being agitated after the attack, at least one individual who observed defendant during that period described him as "calm." In short, even when viewed in the light most favorable to defendant, the evidence demonstrates that defendant behaved in a planned and...