People v. Lendof-Gonzalez

• Decision Date: 15 March 2019
• Docket Number: KA 18–00174,175
• Citation: 95 N.Y.S.3d 675,170 A.D.3d 1508
• Parties: The PEOPLE of the State of New York, Respondent, v. Benito LENDOF–GONZALEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1508
95 N.Y.S.3d 675

The PEOPLE of the State of New York, Respondent,
v.
Benito LENDOF–GONZALEZ, Defendant–Appellant.

175
KA 18–00174

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

Entered: March 15, 2019

ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT–APPELLANT.

BENITO LENDOF–GONZALEZ, DEFENDANT–APPELLANT PRO SE.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.

MEMORANDUM AND ORDER

170 A.D.3d 1508

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of attempted murder in the first degree and attempted murder in the second degree, and dismissing counts three through six of the indictment, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting

170 A.D.3d 1509

him upon a jury verdict of two counts each of attempted murder in the first degree ( Penal Law §§ 110.00, 125.27[1][a][vi] ; [b] ) and attempted murder in the second degree ( §§ 110.00, 125.25[1] ), and one count of criminal solicitation in the second degree (§ 100.10). Defendant contends in his main brief that the conviction is not supported by legally sufficient evidence on the four counts charging him with the crimes of attempted murder in the first and second degrees, because the evidence is insufficient to establish attempts to commit those crimes. We agree.

Prior to the events that led to this conviction, defendant had been arrested for allegedly attacking his wife, and he was remanded to the Niagara County Jail. The evidence from the trial in this matter, viewed in the light most favorable to the People (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), establishes that defendant, while in the jail, passed a series of notes to an inmate in a neighboring cell, asking that inmate to kill defendant's wife and her mother. In those notes, defendant explained that he wanted the two women killed by injecting them with heroin and other substances, and that defendant's children were to be taken from his wife's house and given to a friend. Defendant also indicated a date on which the inmate was to commit the crimes, stated the place where it was to occur, told the inmate how to place certain items within the crime scene, and provided a map to the location where the inmate would find the friend who would take the children. Defendant promised to give the inmate a house in return for the killings. Defendant and the inmate also discussed the plan in person after the inmate was released on bail, and defendant made telephone calls to the inmate and the inmate's girlfriend concerning the plan.

Unbeknownst to defendant, the inmate immediately contacted jail authorities and informed them of defendant's proposal. The inmate spoke to investigators, allowed them to copy the notes and eventually gave them the original notes, made a deal

95 N.Y.S.3d 678

with an assistant district attorney, and told defendant that the crimes had been committed. Nevertheless, the inmate did nothing to effectuate the crimes.

In order to be legally sufficient to support a conviction of an attempt to commit any of the charged crimes, the evidence must establish that defendant engaged in conduct that "tends to effect the commission of such crime" ( Penal Law § 110.00 ). The Court of Appeals has made it clear that the statute "was not intended to eliminate the preexisting requirement that an attempt come very near to the accomplishment of the intended

170 A.D.3d 1510

crime before liability could be imposed" ( People v. Mahboubian, 74 N.Y.2d 174, 190, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] [internal quotation marks omitted] ). Thus, "[t]he defendant's conduct ‘must have passed the stage of mere intent or mere preparation to commit a crime,’ but the defendant need not have taken ‘the final step necessary’ to accomplish the crime in order to be guilty of an attempted crime" ( People v. Denson, 26 N.Y.3d 179, 189, 21 N.Y.S.3d 179, 42 N.E.3d 676 [2015] ). "Acts of preparation to commit an offense do not constitute an attempt ... There must be a step in the direct movement towards the commission of the crime after preparations have been made ... Likewise, acts of conspiring to commit a crime, or of soliciting another to commit a crime do not per se constitute an attempt to commit the contemplated crime" ( People v. Trepanier, 84 A.D.2d 374, 377, 446 N.Y.S.2d 829 [4th Dept. 1982], lv denied 56 N.Y.2d 655, 450 N.Y.S.2d 1044, 436 N.E.2d 206 [1982] [internal quotation marks omitted] ). Consequently, the People must establish that defendant "engaged in conduct that came dangerously near commission of the completed crime" ( People v. Naradzay, 11 N.Y.3d 460, 466, 872 N.Y.S.2d 373, 900 N.E.2d 924 [2008], rearg dismissed 17 N.Y.3d 840, 930 N.Y.S.2d 535, 954 N.E.2d 1160 [2011] [internal quotation marks omitted]; see Denson, 26 N.Y.3d at 189, 21 N.Y.S.3d 179, 42 N.E.3d 676 ; People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694 [2001], rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773 [2001], cert denied 532 U.S. 1069, 121 S.Ct. 2224, 150 L.Ed.2d 216...