People v. Motter

• Decision Date: 02 January 1997
• Citation: 653 N.Y.S.2d 378,235 A.D.2d 582
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert M. MOTTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 378

653 N.Y.S.2d 378

235 A.D.2d 582

The PEOPLE of the State of New York, Respondent, v. Robert M. MOTTER, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 2, 1997.

Michael Jacobs, Stamford, for appellant.

Richard D. Northrup Jr., District Attorney (Paul F. Eaton Jr. of counsel), Walton, for respondent.

Before MIKOLL, J.P., and CASEY, YESAWICH, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeal from a judgment of the County Court of Delaware County (Estes, J.), rendered May 8, 1995, upon a verdict convicting defendant of the crimes of attempted manslaughter in the first degree, assault in the first degree and grand larceny in the third degree.

Defendant, a 23-year-old male, was charged with both the attempted murder and assault of his mother and with the shooting death of Jeannie Fenmore, his mother's cousin, which occurred in the Town of Hamden, Delaware County, in 1993. Defendant was indicted for murder in the second degree, attempted murder in the second degree, assault in the first degree and grand larceny in the third degree; he was alleged to have acted in concert with his brother, James Hendrickson, in all counts of the indictment.

On or about December 23, 1993, defendant and Hendrickson are alleged to have argued with their mother and Fenmore at their mother's home. Defendant got angry and left the house; he and Hendrickson went to a bar where they drank heavily and discussed moving out of the mother's house. They returned to the house, where Hendrickson argued again with their mother while defendant was upstairs packing his bag. Defendant heard a single shot which later was determined to have caused the death of Fenmore. He then went downstairs to join Hendrickson who was beating his mother with the rifle used to shoot Fenmore; at that point defendant began punching and kicking his mother in an attempt "to put her out". As a result of the beating, the mother suffered a collapsed lung, broken ribs, a shattered elbow and a broken shoulder; after she was rendered unconscious, defendant and Hendrickson gathered some things from the house and left in her truck.

The mother regained consciousness and went to a neighbor's house and asked them to call the police. The Delaware County Sheriff received the homicide report and requested assistance from the State Police. After interviewing the mother, investigators determined that defendant and Hendrickson had probably gone to either Long Island, Virginia or Pennsylvania. Numerous "be on the lookout" messages were broadcast by the Sheriff's office describing the suspects and the vehicle in which they were traveling, stating that the suspects were wanted in connection with a homicide and that they were believed to be armed and dangerous.

Investigators were eventually able to identify a specific address in Strasburg, Virginia, from the mother's address book and they notified the Strasburg Police Department. They requested that the Strasburg police check the address given for signs of defendant and Hendrickson. The morning after the homicide, the Strasburg police notified the New York investigators that the truck was spotted at the reported address and placed the residence under surveillance. However, as this was occurring, defendant and Hendrickson left the residence in the truck and headed for the interstate. Virginia law enforcement authorities apprehended defendant and Hendrickson on State Route 55, advised them of their Miranda rights and turned them over to the Strasburg Police Department. At the police station, defendant and Hendrickson were interrogated and videotaped statements were obtained from both suspects. At the conclusion of the questioning, defendant and Hendrickson were transported to jail where they were held until they were extradited to New York.

After a Huntley and suppression hearing, County Court ruled that the statements obtained by Virginia police from defendant were admissible, holding that defendant had been properly advised of his rights, that he waived those rights, and that the statements were voluntarily given and not a product of police coercion. County Court also found that the Virginia police had probable cause to arrest defendant. After a jury trial, defendant was convicted of attempted manslaughter in the first degree, assault in the first degree and grand larceny in the third degree; defendant was acquitted of murder in the second degree. He was sentenced to consecutive indeterminate terms of imprisonment of 5 to 15 years for attempted manslaughter and assault, and 2 1/3 to 7 years for grand larceny. Additionally, he was required to pay restitution in the amount of $20,627.76. Defendant appeals.

We affirm. Initially, we reject defendant's claims that attempted manslaughter does not exist as a crime and that County Court erred in submitting both charges of murder in the second degree and attempted murder in the second degree and manslaughter in the first degree and attempted manslaughter in the first degree to the jury. Defendant's reliance on People v. Martinez, 179 A.D.2d 935, 579 N.Y.S.2d 233, mod 81 N.Y.2d 810, 595 N.Y.S.2d 376, 611 N.E.2d 277, is misplaced. In cases where a defendant offers an affirmative defense which negates intent and it is offered to mitigate or reduce a charge of attempted murder, the crime of attempted manslaughter can be charged (see, People v. Robinson, 143 A.D.2d 376, 377, 532 N.Y.S.2d 411, lv denied 73 N.Y.2d 789, 536 N.Y.S.2d 749, 533 N.E.2d 679; see also, People v. Angel, 185 A.D.2d 356, 586 N.Y.S.2d 622, lvs denied 80 N.Y.2d 1025, 592 N.Y.S.2d 674, 607 N.E.2d 821, 81 N.Y.2d 1069, 601 N.Y.S.2d 588, 619 N.E.2d 666). Here, defendant cannot raise the defense of extreme emotional disturbance for certain crimes charged in the multicount indictment and then exclude it for other crimes. The crimes in question arose out of the same course of conduct, leading to the conclusion that defendant's state of mind was consistent throughout. Accordingly, County Court correctly submitted to the jury the charge of attempted murder in the second degree as well as the charge of attempted manslaughter in the first degree.

We also reject defendant's contention that he cannot be found guilty of aiding and abetting an attempted manslaughter when he suffers from extreme emotional disturbance. Defendant was convicted of attempted manslaughter in the first degree instead of the second degree murder charge to which Hendrickson pleaded guilty; there is merit to the People's assertion that this finding by the jury took into consideration defendant's claim of extreme emotional disturbance. Penal Law § 20.00 provides:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

This statute "imposes accessorial liability on an accomplice not for aiding or encouraging another to reach a particular mental state, but rather for intentionally aiding another to engage in conduct which constitutes the charged offense while himself 'acting with the mental culpability required for the commission' of that offense" (People v. Flayhart, 72 N.Y.2d 737, 741, 536 N.Y.S.2d 727, 533 N.E.2d 657). In order to sustain a finding of liability on the basis of aiding and abetting, it must be shown that a defendant " ' "share[d] the intent or purpose of the principal actor" ' " (People v. Kaplan, 76 N.Y.2d 140, 144, 556 N.Y.S.2d 976, 556 N.E.2d 415, quoting People v. La Belle, 18 N.Y.2d 405, 412, 276 N.Y.S.2d 105, 222 N.E.2d 727, quoting 1 Burdick, Crimes § 221, at 297).

Here, it is clear from defendant's own statement that he shared the intent of Hendrickson in both the murder of Fenmore and the assault and attempted murder of his mother. During his videotaped interview in Virginia, defendant described his conduct during the crime as "helping his brother take care of two people" and stated that when he heard the single shot, he said that he said to himself "Whoop, there's one. Let's do the other one." Thereafter, defendant went downstairs and assisted Hendrickson in the assault on his mother, acknowledging during his statement that his intent was to "put her out". It is evident that defendant acted in concert with Hendrickson to bring about the intended result. Accordingly, defendant's defense of extreme emotional disturbance does not preclude a finding of guilt for the crime of aiding and abetting an attempted manslaughter in the first degree.

We also reject defendant's claim that the statements he made to the Virginia police are products of an illegal arrest and should have been suppressed. Probable cause to arrest exists when the police can "show that they possessed sufficient information to convince a person of ordinary intelligence that a crime was committed by such individual" (People v. Alpern, 217 A.D.2d 853, 854, 630 N.Y.S.2d 106, lv denied 87 N.Y.2d 897, 641 N.Y.S.2d 227, 663 N.E.2d 1257). It is clear from the testimony that the officers who sent the message to "be on the lookout" for defendant and Hendrickson had probable cause to arrest them. The New York police were acting on a statement given to them by the mother, a victim and eyewitness of the attack, which supplied more than enough information to give them probable cause to arrest defendant (see, People v. Rivera, 221 A.D.2d 667, 634 N.Y.S.2d 217, lv denied 87 N.Y.2d 1024, 644 N.Y.S.2d 158, 666 N.E.2d 1072). Under the "fellow officer rule", probable cause to arrest can be imputed to the arresting officer "when [he or she is] acting at the direction of another law enforcement officer who has the requisite probable cause" (People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028). Thus the Virginia police officers who arrested defendant, acting on the instructions and information...