People v. Monserate

• Decision Date: 01 December 1998
• Citation: 682 N.Y.S.2d 25,256 A.D.2d 15
• Parties: 1998 N.Y. Slip Op. 10,541 The PEOPLE of the State of New York, Respondent, v. Carmelo MONSERATE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 25

682 N.Y.S.2d 25

1998 N.Y. Slip Op. 10,541

The PEOPLE of the State of New York, Respondent, v. Carmelo MONSERATE, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 1, 1998.

David M. Cohn, for Respondent.

Richard Wojszwilo, for Defendant-Appellant.

MILONAS, J.P., ELLERIN, RUBIN and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered March 14, 1996, convicting defendant, after a jury trial, of murder in the second degree (two counts), attempted murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of 20 years to life on the murder convictions, 8 1/3 to 25 years on the attempted murder and criminal use of a firearm in the first degree convictions, 5 to 15 years on the criminal possession of a weapon in the second degree conviction, and 2 1/3 to 7 years on the criminal possession of a weapon in the third degree conviction, unanimously affirmed.

The verdict was based on legally sufficient evidence. There was ample evidence that defendant caused the death of the bystander victim under the theories of intentional (transferred intent) and depraved indifference murder, and of defendant's intent to cause the death of the intended victim under the attempted murder count (see, People v. Russell, 91 N.Y.2d 280, 670 N.Y.S.2d 166, 693 N.E.2d 193; People v. Fernandez, 88 N.Y.2d 777, 650 N.Y.S.2d 625, 673 N.E.2d 910; People v. Hernandez, 82 N.Y.2d 309, 604 N.Y.S.2d 524, 624 N.E.2d 661). We reject defendant's speculative claim that the shot that killed the bystander-victim could have been fired by a non-participant in the gun battle initiated by defendant.

The trial court properly submitted to the jury the counts of intentional murder and depraved indifference murder in the conjunctive, rather than in the alternative, since more than one mens rea could have existed simultaneously under the circumstances (see, People v. Mills, 214 A.D.2d 423, 625 N.Y.S.2d 37, lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 454, 658 N.E.2d 232; People v. Campbell, 208 A.D.2d 641, 617 N.Y.S.2d 195, lv. denied 84 N.Y.2d 1029, 623 N.Y.S.2d 185, 647 N.E.2d 457). Defendant acted intentionally as to his intended victim, causing the death of the bystander victim with transferred intent, and defendant also acted with depraved...