People v. Molina

• Decision Date: 16 December 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Demetrius E. MOLINA, Appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 331

79 A.D.3d 1371

The PEOPLE of the State of New York, Respondent,

v.Demetrius E. MOLINA, Appellant.

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

Dec. 16, 2010.

Larry J. Fredella, New York City (Gary Farrell of counsel), for appellant.

Weeden A. Wetmore, District Attorney, Elmira, for respondent.

Before: MERCURE, J.P., MALONE JR., KAVANAGH, GARRY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered July 28, 2009, upon a verdict convicting defendant of the crimes of manslaughter inthe first degree, murder in the second degree, attempted murder in the second degree, criminal use of a firearm in the first degree (two counts) and criminal possession of a weapon in the second degree.

On August 1, 2008, Maurice Davis was sleeping in the master bedroom on the second floor of the apartment he shared with his wife at 347 Woodlawn Avenue in an apartment complex located in the City of Elmira, Chemung County, when a bullet penetrated the apartment's exterior wall, striking him in the head and killing him. Defendant was thereafter arrested and charged with two counts of murder in the second degree, attempted murder in the second degree, two counts of criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree. Following a jury trial, defendant was convicted of manslaughter in the first degree (as a lesser included offense of intentional murder in the second degree), depraved indifference murder in the second degree, attempted murder in the second degree, two counts of criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree. Defendant was sentenced to an aggregate prison term of 17 1/2 years to life, with five years of postrelease supervision. Defendant now appeals.

The testimony at trial established that, on the evening of July 31, 2008, Eric Knox, Romondo Ross and defendant were at a nightclub near the City of Elmira, when an altercation occurred between Ross and another group of men from South Carolina. After leaving the nightclub, both groupseventually traveled to the apartment complex, with the men from South Carolina congregating outside of the apartment at 352 Woodlawn Avenue. Knox, Ross and defendant met up with Jarvis Harvard, Bruce Bacome and Aaron Bacome at the complex, circled around the grounds of the complex on foot to the north, then turned to the south heading towards 352 Woodlawn Avenue. Viewed from this perspective, 347 Woodlawn Avenue lay to the south, or beyond, 352 Woodlawn Avenue. As they approached the men from South Carolina who were with certain other people, Harvard heard someone in his group say, "there they go over there." Harvard then saw defendant pull a gun from his waistband and start shooting. Harvard heard "bang, bang, bang, bang" and ran. The doorway of 352 Woodlawn Avenue sustained bullet strike marks, and bullet fragments were found on the ground in front of the door, but none of the persons standing there was struck. Two other bullets, both 9 millimeter, penetrated the exterior walls of 347 Woodlawn Avenue, the apartment building where Davis and his family resided. One bullet penetrated theexterior wall of the second floor children's bedroom, passed through an interior sheet rock wall and fell to the floor; the other bullet penetrated the exterior wall of the second floor master bedroom, passed through the bed's headboard and struck the victim. Four 9 millimeter shell casings, all opined to have been discharged from the same firearm, were found on the ground near the northeast corner of 352 Woodlawn Avenue. A trajectory analysis of the bullet holes at 347 Woodlawn Avenue revealed that they were consistent with having been fired from the area where the ejected casings were found.

Defendant contends that County Court erred by instructing the jury that it could consider the charges of intentional murder in the second degree and depraved indifference murder in the second degree in the conjunctive, rather than in the alternative. Intentional murder in the second degree requires a finding that, with the "intent to cause the death of another person, [the defendant] causes the death of such person or of a third person" (Penal Law § 125.25[1] ). Depraved indifference murder in the second degree requires a finding that, "[u]nder circumstances evincing a depraved indifference to human life, [the defendant] recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] the death of another person" (Penal Law § 125.25[2] ).

Generally, a defendant cannot be found to have both intended the death of a victim and, at the same time, "committed depraved mind murder by recklessly and thus unintentionally killing that same victim" ( People v. Gallagher, 69 N.Y.2d 525, 529-530, 516 N.Y.S.2d 174, 508 N.E.2d 909 [1987]; see Matter of Suarez v. Byrne, 10 N.Y.3d 523, 534, 860 N.Y.S.2d 439, 890 N.E.2d 201 [2008]; People v. Gonzalez, 1 N.Y.3d 464, 468, 775 N.Y.S.2d 224, 807 N.E.2d 273 [2004] ). " '[T]win-count indictments'-charging both intentional homicide and depraved indifference murder-should be rare. Twin-count submissions to a jury, even rarer" ( People v. Suarez, 6 N.Y.3d 202, 215, 811 N.Y.S.2d 267, 844 N.E.2d 721 [2005] ). When both counts are presented, "trial courts should presume that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts" ( id. at 215, 811 N.Y.S.2d 267, 844 N.E.2d 721 [internal quotation marks and citation omitted] ). While a defendant may possess "different states of mind with regard to different potential victims" ( People v. Page, 63 A.D.3d 506, 508, 880 N.Y.S.2d 287 [2009],lv. denied 13 N.Y.3d 837, 890 N.Y.S.2d 453, 918 N.E.2d 968 [2009] ) and "can intend to cause the death of one person while simultaneously engaging in conduct that recklessly creates a grave risk of death to another" ( People v. Craft, 36 A.D.3d 1145, 1147, 827 N.Y.S.2d 376 [2007], lv. denied 8 N.Y.3d 945, 836 N.Y.S.2d 555, 868 N.E.2d 238 [2007] ), the fiction of "transferred intent"-permitting prosecution underPenal Law § 125.25(1) for causing the death of an unintended victim-"should not be employed to multiply criminal liability, but to prevent a defendant who has committed all of the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime" ( People v. Fernandez, 88 N.Y.2d 777, 782, 650 N.Y.S.2d 625, 673 N.E.2d 910 [1996] [internal quotation marks and citation omitted] ). Thus, in the rare circumstance that the counts of intentional murder and depraved indifference murder are submitted to the jury ( see People v. Suarez, 6 N.Y.3d at 215, 811 N.Y.S.2d 267, 844 N.E.2d 721; People v. Timmons, 78 A.D.3d 1241, ----, 910 N.Y.S.2d 290, 292 [2010]; People v. Rollins, 51 A.D.3d 1279, 1281, 858 N.Y.S.2d 474 [2008], lvs.denied 11 N.Y.3d 922, 930, 874 N.Y.S.2d 8, 15, 902 N.E.2d 442, 449 [2009] ), we find that each count and its appropriate lesser included offenses must be charged in the alternative ( see CPL 300.30[5]; 300.40[5]; People v. Gallagher, 69 N.Y.2d at 530, 516 N.Y.S.2d 174, 508 N.E.2d 909; People v. Timmons, 910 N.Y.S.2d at 292; cf. People v. Henderson, 78 A.D.3d 1506, 911 N.Y.S.2d 521, 522-23 [2010]; but cf. People v. Page, 63 A.D.3d at 508, 880 N.Y.S.2d 287; People v. Monserate, 256 A.D.2d 15, 15-16, 682 N.Y.S.2d 25 [1998], lv. denied 93 N.Y.2d 855, 688 N.Y.S.2d 503, 710 N.E.2d 1102 [1999] ).

Where as here, defendant intended to kill one or more of the men from South Carolina but mistakenly killed Davis, he may be found guilty of the intentional murder of Davis under the doctrine of "transferred intent" ( People v. Timmons, 910 N.Y.S.2d at 292; see People v. Fernandez, 88 N.Y.2d at 781, 650 N.Y.S.2d 625, 673 N.E.2d 910), or he may be found guilty of depraved indifference murder by his act of shooting a gun in an occupied apartment complex, the bullets of which penetrate the wall of a neighboring apartment building causing the fatality ( see People v. Timmons, 910 N.Y.S.2d at 292), but not both. To hold otherwise impermissibly takes the issue of determining defendant's mens rea out of the hands of the jury ( see People v. Gallagher, 69 N.Y.2d at 530, 516 N.Y.S.2d 174, 508 N.E.2d 909), and invites the jury to simultaneously convict defendant of killing Davis both intentionally and with a depraved mind, when it should have been instructed that it could find defendant guilty of either intentional murder or depraved indifference murder, or some lesser count of either one. Accordingly, County Court erred in permitting the jury to consider the intentional murder count in the conjunctive with the depraved indifference murder count. As such, defendant's convictions of manslaughter in the first degree and murder in the second degree under counts 1 and 2 of the indictment must be reversed.

Defendant next argues that the verdict was against the weight of the evidence since Harvard's testimony was not sufficiently credible to establish defendant's guilt and since the shell casings found at the scene were not in the location that Harvard placed defendant at the time of the shooting. A weight of the evidence review is "a two-step approach that requires courts tofirst determine whether, based on all the credible evidence, a different finding would not have been unreasonable, and, if that step is satisfied, then the appellate court must, like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Sanchez, 75 A.D.3d 911, 913, 905 N.Y.S.2d 692 [2010] [internal quotation marks and citations omitted]; see People v. Battease, 74 A.D.3d 1571, 1575, 904 N.Y.S.2d 241 [2010], lv. denied 15 N.Y.3d 849, 909...