People v. McIntosh

• Decision Date: 15 June 2018
• Docket Number: KA 14–01137,300
• Citation: 162 A.D.3d 1612,78 N.Y.S.3d 856
• Parties: The PEOPLE of the State of New York, Respondent, v. James R. MCINTOSH, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1612

78 N.Y.S.3d 856

The PEOPLE of the State of New York, Respondent,

v.James R. MCINTOSH, Defendant–Appellant.

300

KA 14–01137

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

Entered: June 15, 2018

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is modified on the law by reversing that part convicting defendant of manslaughter in the first degree and dismissing count two of the indictment and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1 ] ) and manslaughter in the first degree (§ 125.20[1] ), arising from an altercation that occurred between defendant and one of his roommates (hereafter, victim) in their apartment. Both defendant and the victim had consumed alcohol earlier in the evening, and during the altercation defendant possessed a knife and caused one non-lethal and one fatal stab wound to the victim. Defendant and the victim shared the apartment with a third man who heard the altercation from inside his bedroom but did not see it. Although we agree with defendant that County Court erred in refusing to charge the jury with two lesser included charges requested by defendant, we conclude that the error is harmless under the circumstances of this case.

To establish entitlement to a charge on a lesser included offense, "a defendant must show both that the greater crime cannot be committed without having concomitantly committed the lesser by the same conduct, and that a reasonable view of the evidence supports a finding that he or she committed the lesser, but not the greater, offense" ( People v. James, 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261 [2008] ; see People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 [1995] ; People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ; see also CPL 1.20[37] ; 300.50[1] ). With respect to the first prong, it is undisputed that the requested charges of manslaughter in the second degree ( Penal Law § 125.15[1] ) and criminally negligent homicide (§ 125.10) are each lesser included offenses of murder in the second degree ( § 125.25[1] ; see People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ; People v. Morris, 138 A.D.3d 1408, 1410, 30 N.Y.S.3d 424 [4th Dept. 2016], lv denied 27 N.Y.3d 1136, 39 N.Y.S.3d 118, 61 N.E.3d 517 [2016] ) and manslaughter in the first degree (§ 125.20[1]; see People v. Helliger, 96 N.Y.2d 462, 467, 729 N.Y.S.2d 654, 754 N.E.2d 756 [2001] ; People v. Johnson, 160 A.D.2d 1024, 1025, 554 N.Y.S.2d 946 [2d Dept. 1990] ; People v. Hoy, 122 A.D.2d 618, 618–619, 504 N.Y.S.2d 939 [4th Dept. 1986] ).

The issue whether the court erred in refusing to charge the requested lesser included offenses thus turns on the second prong, i.e., " ‘whether on any reasonable view of the evidence it is possible for the trier of the facts to acquit the defendant on the higher count[s] and still find him guilty on the lesser one[s]’ " ( People v. Hull, 27 N.Y.3d 1056, 1058, 35 N.Y.S.3d 284, 54 N.E.3d 1155 [2016] ). "In assessing whether there is a ‘reasonable view of the evidence,’ the proof must be looked at ‘in the light most favorable to [the] defendant’ " ( Rivera, 23 N.Y.3d at 120–121, 989 N.Y.S.2d 446, 12 N.E.3d 444, quoting People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 [1983] ). The "inquiry is not directed at whether persuasive evidence of guilt of the greater crime exists ... but [instead is directed at] whether, under any reasonable view of the evidence, it is possible for the trier of fact[ ] to acquit defendant on the higher count[s] and still find him guilty of the lesser one[s]" ( Van Norstrand, 85 N.Y.2d at 136, 623 N.Y.S.2d 767, 647 N.E.2d 1275 ).

Viewing the evidence in the light most favorable to defendant, we conclude that there is a reasonable view of the evidence that defendant acted either recklessly or with criminal negligence, but not with intent to cause death ( Penal Law § 125.25[1] ) or with intent to cause serious physical injury (§ 125.20[1] ). According to his testimony, defendant was confronted at his bedroom door by the victim, who was apparently angry about defendant's contact with a certain woman and repeatedly threatened defendant with physical harm. Defendant was afraid and feared that the victim was going to kill him. The victim attempted to force his way into defendant's bedroom and eventually grabbed defendant by the shoulder. Defendant testified that he then picked up the knife and "[p]oked it ... towards [the victim's] leg," but he did not know at that point if he had struck the victim. The Medical Examiner, who testified during the People's case-in-chief, characterized the resulting stab wound to the victim's leg as "superficial and non-lethal." Defendant's action further enraged the victim, prompting him to come forward toward defendant, at which point defendant raised the knife up to about his own chest level. Defendant testified that he "raised the knife up and poked again, jabbed again, and then [the victim] stopped and ... backed off." Defendant testified that he did not know it at the time, but he apparently struck the victim in the chest with the knife. The victim stopped at that point, took about three steps backward, and then fell against the wall and to the floor with—as later determined by the Medical Examiner—a fatal, four-inch-deep stab wound that had penetrated his heart. Defendant immediately called 911.

Defendant denied that he intended to kill the victim or to inflict serious physical injury. Defendant "was just hoping that [the victim] would back off and he would get scared, back off and get out of there, get away from [the bedroom] door, and get out of ... [defendant's] room so [defendant] could close [his] door and lock it." According to defendant, he did not perceive that his actions would result in the victim's death. Although defendant acknowledged on cross-examination that he intended to "poke" the victim the second time, defendant maintained that he was merely trying to hold off the victim to stop him from attacking and "just intended to protect [him]self," but did not intend to hurt the victim or put the knife into him. Defendant stood his ground and put the knife out and poked the victim, who came forward into the knife. The Medical Examiner's testimony that it took "some force" for the knife to penetrate four inches into the victim's chest does not render defendant's account unreasonable, particularly inasmuch as the Medical Examiner conceded on cross-examination that some of the force necessary to stab the victim could have been provided by the victim himself moving into the knife, which is consistent with defendant's testimony. Likewise, the Medical Examiner's testimony that the victim was stabbed in a downward direction, which she opined was inconsistent with a "poke," was based upon the victim standing upright, but defendant testified that the victim was hunched forward, like a "linebacker."

Contrary to the People's contention and the court's determination, the evidence that defendant's underlying physical act of "poking" the victim with the knife was deliberate does not preclude a finding that, with respect to defendant's culpable mental state relative to the result of causing the victim's death (see Penal Law §§ 125.15[1] ; 125.10), defendant acted recklessly in that he was "aware of and consciously disregard[ed] a substantial and unjustifiable risk that such result [would] occur" (§ 15.05[3] ) or acted with criminal negligence in that he "fail[ed] to perceive a substantial and unjustifiable risk that such result [would] occur" (§ 15.05[4]; see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ; People v. Usher, 39 A.D.2d 459, 460–461, 336 N.Y.S.2d 935 [4th Dept. 1972], affd 34 N.Y.2d 600, 354 N.Y.S.2d 952, 310 N.E.2d 547 [1974] ). Moreover, given the number and nature of the stab wounds here—the first of which resulted in a superficial and non-lethal wound to the victim's leg, which was consistent with defendant's testimony that he was simply attempting to get the victim to back away, and the second of which may have been caused, at least in part, by the victim moving forward into the knife—we conclude that this case is distinguishable from those in which the number, depth, and severity of the wounds are such that there is no reasonable view of the evidence to support a finding other than an intent to cause death or serious physical injury (cf. e.g. People v. Stanford, 87 A.D.3d 1367, 1368, 930 N.Y.S.2d 149 [4th Dept. 2011], lv. denied 18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012] ; People v. Collins, 290 A.D.2d 457, 458, 736 N.Y.S.2d 109 [2d Dept. 2002], lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358 [2002] ). Similarly, we conclude that there is a reasonable view of the evidence that defendant, although admittedly acting to protect himself with the knife, did not intend to make contact with the victim at all or that, if he did intend to make contact by "poking" the victim, defendant intended only to get the victim to back off and did not intend to harm him (cf. People v. Henley, 145 A.D.3d 1578, 1579, 45 N.Y.S.3d 739 [4th Dept. 2016], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017], reconsideration denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ). Based upon the foregoing, we conclude that the court erred in refusing to charge the jury on the requested lesser included charges of manslaughter in the second degree and criminally negligent homicide.

We further conclude, however, that...