People v. Rollins

Decision Date22 May 2008
Docket Number15037.
Citation2008 NY Slip Op 04573,858 N.Y.S.2d 474,51 A.D.3d 1279
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RICHARD ROLLINS, Also Known as BOO, Appellant.
CourtNew York Supreme Court — Appellate Division

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered April 4, 2003, upon a verdict convicting defendant of the crimes of manslaughter in the first degree, criminal use of a firearm in the first degree (two counts), criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (four counts).

STEIN, J.

Defendant's nephew, Sean Shaw, had a personal conflict with the victim's friend, Terrence Crippen, over a girl. Defendant was aware that tension was building between Shaw and Crippen, that Shaw possessed a gun and that Crippen and his friends carried guns. Defendant was also aware that, sometime after the victim and Crippin confronted Shaw at Shaw's home, Shaw and Crippen had arranged to meet at the victim's home later that day to settle their dispute by a one-on-one "knuckle fight." Defendant, Shaw and others went to the victim's home and a gun fight ensued. After defendant witnessed Shaw fall to the ground, the victim aimed a gun at defendant, who then fired five bullets toward the victim, striking the victim in the eye and killing him. This altercation occurred on a city street with others present, including a school bus carrying handicapped children. Defendant was charged with, among other things, murder in the second degree. Following a jury trial, he was convicted of manslaughter in the first degree, criminal use of a firearm in the first degree (two counts), criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (four counts). Defendant was sentenced to an aggregate prison term of 47 years and 13 years of postrelease supervision. Defendant now appeals.

Defendant contends that County Court erroneously submitted both intentional murder and depraved indifference murder charges to the jury. The Court of Appeals has recognized that "[w]hether because jurors conclude that anyone who would intentionally take a life is depraved, or because they mistakenly believe that depraved indifference murder is a lesser offense than intentional murder and are reluctant to convict of the `most serious' charge, the availability of a depraved indifference murder count has led juries to convict of that charge even though the evidence did not support it" (People v Suarez, 6 NY3d 202, 207 [2005]). Thus, that Court ruled that "twin-count" indictments and "twin-count" submissions to the jury should be rare (id. at 215). Accordingly, we have held that, except in those rare cases, the trial court should determine "whether the defendant's conduct is more consistent with depraved indifference murder or intentional murder, rather than leaving the question of the defendant's state of mind to the jury" (People v Baptiste, 51 AD3d 184, 194-195 [2008]). Here, however, even if the "twin-count" indictment and/or "twin-count" submission to the jury was unwarranted, it was harmless error as the jury did not convict defendant of either murder charge.

We also find unavailing defendant's contention that County Court erred in submitting the crime of manslaughter in the first degree to the jury as a lesser included offense of murder in the second degree (and additionally, manslaughter in the second degree as a lesser included offense of manslaughter in the first degree). County Court has the discretion to submit, sua sponte, lesser included charges to the jury "if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50 [1]; see People v Edwards, 16 AD3d 226, 227 [2005], lv denied 5 NY3d 762 [2005]; see also People v Hernandez, 42 AD3d 657, 658 [2007]).

Here, there is a reasonable view of the evidence that, in shooting at the victim, defendant intended not to kill but to harm him so as to protect himself and/or others from being shot. Nor was County Court's failure to include the defense of third parties in its justification charge reversible error because the "justification defense [was] negated by proof that `[t]he physical force involved [was] the product of a combat by agreement not specifically authorized by law'" (People v Young, 33 AD3d 1120, 1124 [2006], lv denied 8 NY3d 929 [2007], quoting Penal Law § 35.15 [1] [c]; see People v Rosario, 292 AD2d 324, 325 [2002], lv denied 98 NY2d 680 [2002]; Matter of Kim H., 112 AD2d 160, 161 [1985]).

However, we agree, in part, with defendant's contention that County Court erred in imposing consecutive...

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