People v. Mcpherson

• Decision Date: 01 November 2011
• Parties: The PEOPLE, etc., respondent,v.Franklin McPHERSON, appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 752
932 N.Y.S.2d 85
2011 N.Y. Slip Op. 07863

The PEOPLE, etc., respondent,
v.
Franklin McPHERSON, appellant.

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

Nov. 1, 2011.

[932 N.Y.S.2d 86]

Jonathan I. Edelstein, New York, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Judith R. Sternberg, and Jason R. Richards of counsel), for respondent.Richard J. Barbuto, Babylon, N.Y., for amicus curiae Nassau County Criminal Court Bar Association.Robert T. Johnson, District Attorney, Bronx, N.Y. (Anthony Girese, Colleen Phillips, and Joseph McCormack of counsel), for amicus curiae District Attorneys Association of the State of New York.ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.

[89 A.D.3d 752] Appeal by the defendant from a judgment of the County [89 A.D.3d 753] Court, Nassau County (Peck, J.), rendered September 16, 2008, convicting him of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

At around midnight on October 18 to 19, 2007, the defendant went to the Island Rock nightclub in Hempstead with his girlfriend, a friend of his girlfriend, Delroy McCalla, and another individual, Roman Taylor. After drinking alcohol at the nightclub, the defendant and Taylor left and went to a nearby parking lot. McCalla testified that the defendant did not appear intoxicated at that time. According to McCalla, the defendant stated in the parking lot “I lost my shit,” presumably referring to drugs, and the defendant became upset. The defendant went into the trunk of his car and searched for something. The defendant then began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered McCalla to leave with his girlfriend, which McCalla did, driving the defendant's girlfriend home. The defendant and Taylor then entered the defendant's vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9–millimeter shell casings in the parking lot.

Thereafter, at approximately 3:30 A.M., the defendant's vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant's vehicle traveled in the wrong direction from about exit 19 to exit 13, a distance of approximately five miles. A witness observed the defendant driving directly at him while changing

[932 N.Y.S.2d 87]

lanes. That witness had to immediately pull his vehicle onto the shoulder to avoid a collision. This witness saw that the defendant continued driving the wrong way, and the witness observed the other vehicles on the parkway “[s]plit apart” in order to get away from the defendant. The witness testified that the defendant “was steadily going, not braking, nothing. He was just going. He was speeding.” Meanwhile, another witness, Police Sergeant Edward Schulze, [89 A.D.3d 754] was also driving in the proper direction in the left eastbound lane of the parkway. As Sergeant Schulze passed exit 14, he observed the defendant's vehicle driving towards him “at a very, very high rate of speed,” which caused Sergeant Schulze to “violently” turn his steering wheel to the right to avoid a collision. The defendant's car came within inches of Sergeant Schulze's vehicle. According to Sergeant Schulze, the defendant “made absolutely no effort to get out of the way.”

Near exit 13, the defendant's vehicle, without ever having slowed down, collided with the victim's vehicle, killing the victim instantly and incinerating the victim's vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. Following the defendant's arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%.

After the defendant was removed from his vehicle, the police began conducting an inventory search of the vehicle. The discovery of several 9–millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9–millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9–millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant's vehicle matched the shell casings found in the parking lot near the nightclub.

The defendant's contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of those crimes beyond a reasonable doubt ( see People v. Heidgen, 87 A.D.3d 1016, 930 N.Y.S.2d 199). A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25[2] ).

We disagree with our dissenting colleague's view that there was no evidence that the defendant deliberately and purposefully proceeded the wrong way down the parkway, in recognition[89 A.D.3d 755] of the grave risk to human life, and with utter disregard for the consequences. Rather, viewing the evidence in the light most favorable to the prosecution, as we must ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), the testimony of the witnesses who observed the defendant speeding directly at them on the

[932 N.Y.S.2d 88]

parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant's mental state was one of depraved indifference to human life ( see People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163).

The defendant asserts that his BAC content and intoxication rendered him unable to form the mental state of depraved indifference to human life. To the contrary, the evidence demonstrated that the defendant helped Taylor leave the nightclub. In addition, McCalla testified that when the defendant left the nightclub, the defendant “looked okay to [him],” “didn't look like intoxicated to me [sic],” and that the defendant “seemed like he could handle himself.” The evidence did not establish that the defendant was too intoxicated to form the culpable mental state necessary to prove depraved indifference ( see People v. Heidgen, 87 A.D.3d at 1022, 930 N.Y.S.2d 199 [involving an intoxicated motorist traveling the wrong way on a parkway, stating that the evidence “did not establish that the defendant was intoxicated to a degree of total oblivion or mania” so as to preclude the defendant from forming the requisite mental state]; cf. People v. Coon, 34 A.D.3d 869, 870, 823 N.Y.S.2d 566 [after a nonjury trial, trial court found the defendant “suffered an atypical idiopathic reaction to the substance such that, at the time of the attack, he was experiencing cocaine intoxication delirium”] ). Thus, the record supports a view of the evidence that the defendant was coherent and able to form the requisite mens rea prior to leaving the parking lot.

Perhaps instructive on the import of the defendant's BAC content is People v. Wells, 53 A.D.3d 181, 862 N.Y.S.2d 20. In Wells, the intoxicated defendant drove through a red light, striking another vehicle and killing a passenger in that vehicle. The evidence adduced in that case further showed that, prior to the fatal collision, the defendant had struck a parked car and narrowly missed hitting another vehicle when he sped through a red traffic light. Following a nonjury trial, the defendant was convicted of, among other things, depraved indifference murder and assault in the first degree. On appeal, the Appellate Division, First Department, held that, applying the standards set forth in either People v. Register (60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544) or People v. Feingold (7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163), the evidence was legally sufficient and the verdict was not [89 A.D.3d 756] against the weight of the evidence ( see People v. Wells, 53 A.D.3d 181, 862 N.Y.S.2d 20). Thereafter, the United States District Court for the Southern District of New York denied the defendant's petition for a writ of habeas corpus ( see Wells v. Perez, 2011 WL 1453925, 2011 U.S. Dist. LEXIS 40712 [S.D.N.Y.] ). Two tests conducted approximately two hours after the incident revealed the defendant's BAC to be 0.25% and 0.27%, respectively. Thus, here, as in Wells, a defendant's statutory intoxication is not dispositive on the issue of whether a defendant was capable of forming the...