People v. Malcolm

• Decision Date: 10 June 2010
• Citation: 902 N.Y.S.2d 264,74 A.D.3d 1483
• Parties: The PEOPLE of the State of New York, Respondent, v. Roger MALCOLM, Appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 264
74 A.D.3d 1483

The PEOPLE of the State of New York, Respondent,
v.
Roger MALCOLM, Appellant.

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

June 10, 2010.

902 N.Y.S.2d 266

Gregory T. Rinckey, Albany, for appellant, and appellant pro se.

Holley Carnright, District Attorney (Joan Gudesblatt Lamb of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, PETERS, KAVANAGH and GARRY, JJ.

PETERS, J.

74 A.D.3d 1483

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered October 2, 2008, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, attempted assault in the first degree, reckless endangerment in the first degree and menacing in the second degree.

Unhappy with the repairs the victim made to his automobile, defendant entered the victim's repair shop armed with a loaded semi-automatic rifle, took aim at the victim and pulled the trigger. When the rifle misfired, the victim rushed defendant and attempted to wrestle the rifle away. Upon hearing the victim's shouts and observing the two struggling with one another on the ground, the victim's employee called the police and secured

74 A.D.3d 1484

the weapon until the police arrived minutes later. Defendant was indicted for attempted murder in the second degree, attempted assault in the first degree, assault in the second degree, reckless endangerment in the first degree and menacing in the second degree and, following a jury trial, was acquitted of the charge of assault in the second degree and found guilty on the remaining counts. Sentenced to an aggregate prison term of 10 years to be followed by five years of postrelease supervision, he appeals.

Defendant first contends that his convictions for attempted murder and attempted assault were against the weight of the evidence, specifically attacking the element of intent.¹ We disagree. A defendant's intent may be inferred from his actions and the surrounding circumstances ( see People v. Bonney, 69 A.D.3d 1116, 1118, 894 N.Y.S.2d 192 [2010], lv. denied 14 N.Y.3d 838 [2010]; People v. Nash, 64 A.D.3d 878, 881, 883 N.Y.S.2d 333 [2009]; People v. Booker, 53 A.D.3d 697, 703, 862 N.Y.S.2d 139 [2008], lv. denied 11 N.Y.3d 853, 872 N.Y.S.2d 76, 900 N.E.2d 559 [2008] ).

At trial, evidence was presented regarding the ongoing dispute between defendant and the victim regarding the work performed on defendant's car. Defendant admitted that, following his conversation with the victim earlier in the day, he was an "emotional mess" and made a sudden decision to do something as he had a "deep-seeded hatred" for the victim. He drove to the victim's garage armed with a loaded rifle, a bayonet strapped to his bare chest and five loaded magazines holding over 100 rounds of ammunition. As he approached, he drove slowly past the victim's garage to ensure that the victim was alone, parked his van approximately 350 feet from the

902 N.Y.S.2d 267

garage, left the engine running and secreted the gun by his side. According to the victim, defendant then entered the premises and, from a distance of approximately six feet away, squatted down, pointed the rifle at the victim's chest and pulled the trigger. The victim further testified that, while he and defendant struggled following the gun's misfire, defendant unsuccessfully attempted to reach for the bayonet while repeatedly stating "you ruined my life." Upon their arrival, police discovered a round in the chamber of the rifle, over 60 rounds of ammunition at the scene of the confrontation and additional ammunition and weaponry

74 A.D.3d 1485

in defendant's vehicle. In light of the background of the dispute, the sheer quantity of ammunition with which defendant armed himself, his surreptitious conduct prior to arriving at the victim's garage and his actions upon confronting the victim, the jury could readily infer that defendant harbored the requisite intent ( see People v. Baker, 27 A.D.3d 1006, 1009, 811 N.Y.S.2d 803 [2006], lv. denied 7 N.Y.3d 785, 821 N.Y.S.2d 814, 854 N.E.2d 1278 [2006]; People v. Mullings, 23 A.D.3d 756, 758, 803 N.Y.S.2d 784 [2005], lv. denied 6 N.Y.3d 756, 810 N.Y.S.2d 424, 843 N.E.2d 1164 [2005]; People v. Rivers, 17 A.D.3d 934, 936, 793 N.Y.S.2d 627 [2005], lv. denied 5 N.Y.3d 768, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005] ). Although defendant testified that he brought the gun to the victim's repair shop merely to "scare the hell out of [the victim] who put [him] through ... hell," that his finger was not on the trigger and that the safety was on the entire time, the jury was free to reject this version of events ( see People v. Baker, 27 A.D.3d at 1009, 811 N.Y.S.2d 803; People v. Hargett, 11 A.D.3d 812, 814, 784 N.Y.S.2d 197 [2004], lv. denied 4 N.Y.3d 744, 790 N.Y.S.2d 657, 824 N.E.2d 58 [2004] ). According due deference to the jury's credibility determinations ( see People v. Romero, 7 N.Y.3d 633, 645, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we are satisfied that the verdict on these counts was supported by the weight of the evidence ( see People v. Stewart, 68 A.D.3d 1438, 1439, 892 N.Y.S.2d 570 [2009], lv. denied 14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110 [2010]; People v. Baker, 27 A.D.3d at 1009, 811 N.Y.S.2d 803).

We are similarly unpersuaded by defendant's assertion that the guilty verdict on the reckless endangerment count was against the weight of the evidence. Relying on ( People v. Davis, 72 N.Y.2d 32, 35-37, 530 N.Y.S.2d 529, 526 N.E.2d 20 [1988] ), defendant contends that the evidence that the safety was on, which prevented the weapon from being fired, precluded a finding that his conduct created a grave risk of death. Unlike Davis, however, the operability of the gun here was not a factual impossibility. Quite to the contrary, a firearms expert testified that the rifle was fully operable and explained that, even if the safety had been engaged, as defendant claimed, it could be easily disengaged...