People v. Leonardo

• Decision Date: 29 October 1982
• Citation: 89 A.D.2d 214,455 N.Y.S.2d 434
• Parties: PEOPLE of the State of New York, Appellant, v. Joseph P. LEONARDO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 434

455 N.Y.S.2d 434

89 A.D.2d 214

PEOPLE of the State of New York, Appellant, v. Joseph P. LEONARDO, Respondent.

Supreme Court, Appellate Division,

Fourth Department.

Oct. 29, 1982.

Richard J. Arcara, Dist. Atty., Erie County Hall, Buffalo, for appellant (John DeFranks, Asst. Dist. Atty., Buffalo, of counsel).

Rose H. Sconiers, Buffalo, for respondent (Joseph Mistrett, Buffalo, of counsel).

Before DILLON, P.J., and HANCOCK, DENMAN, MOULE and SCHNEPP, JJ., concur.

HANCOCK, Justice:

The People appeal from the dismissal of an indictment of defendant on several charges arising from an incident in which, in a suburban neighborhood, defendant fired a rifle at a tree and wounded an 11-year-old girl watching a game in the baseball field beyond.

The indictment contained four counts:

(1) assault, first degree (Penal Law, § 120.10, subd. 1; with intent to cause serious physical injury, causing such injury by means of a deadly weapon);

(2) assault, first degree (Penal Law, § 120.10, subd. 3; under circumstances evincing a depraved indifference to human life, recklessly engaging in conduct creating a grave risk of death and causing serious physical injury);

(3) reckless endangerment, first degree (Penal Law, § 120.25; under circumstances evincing a depraved indifference to human life, recklessly engaging in conduct creating a grave risk of death); and (4) criminal possession of a weapon, fourth degree (Penal Law, § 265.01, subd. 2; possessing a deadly weapon with intent to use it unlawfully against another).

The proof before the grand jury, summarized, shows that on a warm Tuesday afternoon, May 6, 1980, in Amherst, New York, defendant, then 32 years old, loaded one bullet into his father's .22 caliber rifle. Taking it outdoors, he aimed the rifle at a tree beyond which, he knew, was the baseball diamond of Park School. He pulled the trigger. The bullet missed the tree, striking and seriously injuring 11-year-old Kristin Hyland, who was watching her brother play in an after-school baseball game. Defendant took the rifle indoors, cleaned it to remove all traces of the firing, and put it away in its case. When police questioned him soon after the incident, defendant denied any involvement. His arrest took place over a year later, when he confessed to a counselor at a crisis center and then to the police. He told Detective Giambra of the Buffalo Police Department that he had been "target shooting at a tree". In his subsequent written confession he stated that he had been "surprised and scared" when the gun fired because he had thought that he had unloaded it.

We agree that the record does not support any of the crimes charged. There is no showing of intention to cause serious physical injury, a necessary element of count one, nor of intention to use a weapon unlawfully against another, necessary to sustain count four. Turning to counts two and three, in the absence of proof that defendant saw or heard people in the vicinity or was in any way aware of their actual presence in the park, the record does not warrant a finding of a necessary element of these counts, i.e., that defendant's conduct evinced a "depraved indifference to human life" (compare People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497, in which defendant shot through a window into a house which he knew to be occupied; Darry v. People, 10 N.Y. 120, 146, in which the act of shooting into a crowd is discussed as an example of depravity; People v. Robinson, 43 A.D.2d 963, 352 N.Y.S.2d 43, in which defendant, believing the gun to be unloaded, shot directly at a person; People v. Graham, 41 A.D.2d 226, 342 N.Y.S.2d 361, in which defendant fired a loaded gun, intentionally missing a woman by inches, to frighten her). Counts two and three must also fall.

But a court may grant a motion to dismiss an indictment or any count thereof only if the evidence is "not legally sufficient to establish the offense charged or any lesser included offense" (CPL 210.20, subd. 1, par. b, emphasis added). The remaining question, then, is whether the evidence supports a lesser included offense of any of the crimes charged. An offense of lesser grade or degree is a lesser included offense provided that "in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense" (People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376; see CPL 1.20, subd. 37). Where, as here, the crimes charged involve mental culpability, we must apply the rule as stated in People v. Green, 56 N.Y.2d 427, 433, 452 N.Y.S.2d 389, 437 N.E.2d 1146, that when "the elements of the lesser offense (i.e., result and underlying conduct) are identical with the requisite elements of the greater crime and the only thing that differs between the two crimes is the culpable mental states, the CPL definition of 'lesser included offense' is nevertheless satisfied since the lower forms of mental culpability are necessarily subsumed within the higher mental states." (See also People v. Stanfield, 36 N.Y.2d 467, 369 N.Y.S.2d 118, 330 N.E.2d 75.)

Here, four crimes, involving the same conduct and result ¹ as the crimes charged, but lower degrees of mental culpability, are lesser included offenses under Glover and Green: assault, second degree (Penal Law, § 120.05, subd. 4; recklessly causing serious physical injury by means of a deadly weapon) and assault, third degree (Penal Law, § 120.00, subd. 3; causing physical injury with criminal negligence by means of a deadly weapon), both under count one; assault, third degree (Penal Law, § 120.00, subd. 2; recklessly causing physical injury) under count two; and reckless endangerment, second degree (Penal Law, § 120.20, recklessly creating a substantial risk of serious physical injury) under count three. Because there is no appropriate lesser included offense of the fourth count (criminal possession of a weapon, fourth degree), it was properly dismissed.

Whether the facts before the grand jury support any of these lesser included offenses becomes the critical question. The test is whether there has been a "clear showing" that the evidence if unexplained and uncontradicted would not warrant a conviction by a trial jury (see People v. Rallo, 46 A.D.2d 518, 527, 363 N.Y.S.2d 851, affd 39 N.Y.2d 217, 383 N.Y.S.2d 271, 347 N.E.2d 633; People v. Dunleavy, ...