People v. Lendof-Gonzalez

• Decision Date: 24 November 2020
• Docket Number: No. 81,81
• Citation: 163 N.E.3d 15,36 N.Y.3d 87,139 N.Y.S.3d 84
• Parties: The PEOPLE of the State of New York, Appellant, v. Benito LENDOF–GONZALEZ, Respondent.
• Court: New York Court of Appeals Court of Appeals

36 N.Y.3d 87
163 N.E.3d 15
139 N.Y.S.3d 84

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

No. 81

Court of Appeals of New York.

November 24, 2020

OPINION OF THE COURT

FEINMAN, J.

36 N.Y.3d 89

Under our long-standing precedents, a person is guilty of an attempt to commit a crime if the person's conduct comes "dangerously close" to committing the intended crime ( People v. Mahboubian, 74 N.Y.2d 174, 191, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ; People v. Moran, 123 N.Y. 254, 257, 25 N.E. 412 [1890] ). The People's evidence in this case was insufficient to support defendant's convictions for attempted murder in the first and second degrees because it failed to prove that defendant and his feigned confederate took any actual step toward accomplishing defendant's plan to kill his wife and mother-in-law beyond mere conversations and planning. Accordingly, we affirm.

Viewed in the light most favorable to the People, the relevant events in this case unfolded over several days in May 2016 at the Niagara County Jail, where defendant was being held after his arrest at a mobile home in late April for alleged acts of domestic violence against his wife. On May 16, the inmate in the adjoining cell (hereinafter MS) used the communal phone in the cell block to call his girlfriend. The couple discussed obtaining bail for MS and mentioned the impending eviction from their apartment. Once MS had returned to his cell, defendant knocked on the wall and passed a note through the cell bars. The note proposed a deal. Defendant would give MS a house if MS did "two things" for him: kill his wife and mother-in-law using "shop heroin and new drugs"; and make arrangements for the care of his two children. Defendant asked that MS complete his end of the bargain as soon as he was released from jail, and defendant sent a note stating an address and the names of the two targets along with instructions on the time the murders should take place.

Although MS had no intention of following through on defendant's requests, he played along. He wrote defendant that he expected to be released in two days, on May 18, and could "do it" on either May 19 or May 20. Defendant asked that the

36 N.Y.3d 90

job be done "clean[ly] with drugs" and with "[n]o violence," and requested that MS "[u]se gloves." In a "detailed plan to follow," defendant gave instructions on

139 N.Y.S.3d 87

163 N.E.3d 18

how to carry out the murders: MS was to display drugs on a table to stage a fake overdose, get the victims' fingerprints on "everything" that MS used to kill them, pick up keys to the house and cars, and take defendant's two young children with him once he was done. After this initial back-and-forth with defendant, MS informed a correction officer that he had "very serious information" to share and turned over the notes to the jail authorities. They told him to continue communicating with defendant and act as though the plan would proceed as discussed.

The next morning, on May 17, defendant provided MS with a hand-drawn map showing the location of a third party's house, where, according to defendant's instructions, MS was to take the children after killing defendant's wife and mother-in-law. Defendant also gave MS a letter for the third party. Lastly, defendant instructed MS on where to park when he arrived at the targets' identified address and gave a vague description of the location of a hidden set of keys—"on the left up to your head"—for MS to use after making sure that the two targets were inside. MS turned these notes over to the authorities and was removed from his cell block until his release from jail the next day.

After being released on bail, MS learned from his girlfriend that defendant had called, using a number provided by MS, and asked that MS visit him in jail. In coordination with the authorities, MS recorded his conversation during his visit with defendant on May 19. Defendant discussed the "game plan" for the murders and presented MS with a paper he asked him to read, which MS understood to be a blueprint for a suicide letter to make it look like defendant's wife committed suicide. According to defendant's plan, MS would kill the wife and mother-in-law that evening and call defendant the next day using prearranged code words to confirm that the murders had been carried out. MS received a call from defendant the following day, on May 20. Speaking in code, MS told defendant that the "cars" (defendant's wife and mother-in-law) had been "fixed" (killed) and that the "tires" (defendant's children) were with him. Defendant said he was "happy now." Defendant called MS on May 24 to again confirm that MS had fixed the "cars" and taken care of the "tires." After MS expressed concern about when defendant would give him the house, defendant said he had "another place" where MS could stay for "free."

36 N.Y.3d 91

At the close of the People's case, defendant moved to dismiss all counts, arguing that, with respect to the attempted murder counts, there was no evidence of conduct "beyond exchange of letters and some conversation"—that is, nothing beyond mere preparation and planning—and no proof of conduct "carrying the project forward with dangerous proximity ... to the criminal end to be attained" that would satisfy the requisite "dangerously close" standard for an attempt. The trial court denied the motion, finding that the case "just barely survives."

In defining attempt, the court charged the jury that "[c]onduct which tends to effect the commission of a crime means conduct which comes dangerously close or very near to the completion of the intended crime," and that a person is guilty of an attempt to commit a particular crime if the person "intends to commit a crime and engages in conduct which carries his or her purpose forward within dangerous proximity to the completion of the intended crime." The jury convicted defendant of two counts of attempted murder in the first degree, two counts of attempted murder in the second degree, and one count of

139 N.Y.S.3d 88

163 N.E.3d 19

criminal solicitation in the second degree. Defendant moved to set aside the verdict with respect to the attempted murder convictions on the ground that the evidence showed no "affirmative action beyond the planning," but the trial court denied the motion. On defendant's appeal, the Appellate Division vacated the convictions for attempted murder, holding that the evidence at trial was legally insufficient to establish that defendant engaged in conduct that came "dangerously near commission of the completed crime" ( 170 A.D.3d 1508, 1510, 95 N.Y.S.3d 675 [4th Dept. 2019], quoting People v. Naradzay, 11 N.Y.3d 460, 466, 872 N.Y.S.2d 373, 900 N.E.2d 924 [2008] ). Noting that "several contingencies stood between the agreement in the [jail] and the contemplated [crimes]," the court determined that the "evidence establishes only that defendant planned the crimes, discussed them with the inmate in the next cell and with that inmate's girlfriend, and exchanged notes about them" ( id. , quoting People v. Acosta, 80 N.Y.2d 665, 671, 593 N.Y.S.2d 978, 609 N.E.2d 518 [1993] ). A Judge of this Court granted leave to appeal.¹

When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine

36 N.Y.3d 92

whether "there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [quotation marks omitted]). The crimes at issue in this appeal are attempted murder in the first degree and attempted murder in the second degree. As relevant here, the crime of first-degree murder requires the People to prove that a defendant caused another person's death with the intent to do so and "procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement" ( Penal Law § 125.27[1][a][vi] ). For second-degree murder, the People must prove that a "defendant cause[d] the death of another with the intent to do so" ( Penal Law § 125.25[1] ). The inchoate versions of these offenses, as charged here, layer on the definition of criminal attempt set forth in Penal Law § 110.00, which provides that a "person is guilty of an attempt to commit a crime when, with intent to commit a crime, [the person] engages in conduct which tends to effect the commission of such crime."

The mens rea element is not at issue in this case. The People's evidence overwhelmingly supports a rational jury's conclusion that defendant specifically intended to kill his wife and mother-in-law, entered into an agreement to procure the services of MS to carry out his plan, and was "happy" when he was told that the murders had been carried out. Instead, the case...