People v. Simmons

• Decision Date: 25 July 2012
• Citation: 97 A.D.3d 842,948 N.Y.S.2d 681,2012 N.Y. Slip Op. 05761
• Parties: The PEOPLE, etc., respondent, v. Ricky SIMMONS, appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 842

948 N.Y.S.2d 681

2012 N.Y. Slip Op. 05761

The PEOPLE, etc., respondent,

v.Ricky SIMMONS, appellant.

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

July 25, 2012.

Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered February 11, 2009, convicting him of murder in the second degree, burglary in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court properly denied the defendant's request to charge manslaughter in the first degree and manslaughter in the second degree as lesser-included offenses of murder in the first degree and murder in the second degree (Penal Law § 125.25[1] ). Viewed in the light most favorable to the defendant ( see People v. Devonish, 6 N.Y.3d 727, 810 N.Y.S.2d 380, 843 N.E.2d 1120;People v. Randolph, 81 N.Y.2d 868, 597 N.Y.S.2d 630, 613 N.E.2d 536;People v. Vandenko, 70 A.D.3d 733, 892 N.Y.S.2d 866), there is no reasonable view of the evidence that would support a finding that the defendant intended to cause serious physical injury rather than death ( seeCPL 1.20[37]; 300.50[1]; People v. Butler, 84 N.Y.2d 627, 631–632, 620 N.Y.S.2d 775, 644 N.E.2d 1331;People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376;People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146;People v. Maldonado, 5 A.D.3d 505, 772 N.Y.S.2d 583;People v. Spears, 271 A.D.2d 464, 707 N.Y.S.2d 127;cf. People v. Rivera, 15 N.Y.3d 844, 909 N.Y.S.2d 17, 935 N.E.2d 809). The defendant fired four shots at the victim, one to the head and three to his left shoulder and back. Three of the wounds were fatal and one of the wounds on the upper back was caused by a shot fired from a distance of less than six inches. This evidence concerning the number and location of the wounds, as well as other circumstances of the shooting, demonstrate that the court properly determined that charging manslaughter in the first degree and manslaughter in the second degree as lesser-included offenses of murder in the first degree and murder in the second degree was not warranted ( see People v. Vandenko, 70 A.D.3d 733, 892 N.Y.S.2d 866;People v. Maldonado, 5 A.D.3d 505, 772 N.Y.S.2d 583;People v. Gauze, 3 A.D.3d 538, 770 N.Y.S.2d 749;People v. Spears, 271 A.D.2d at 465, 707 N.Y.S.2d 127).

The defendant's challenges to the Supreme Court's jury charge as to burglary in the second degree are without merit. Viewed as a whole, the instructions correctly and effectively conveyed the proper elements of burglary in the second degree ( see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134;People v. Vanbrook, 56 A.D.3d 805, 867 N.Y.S.2d 691;People v. Mestres, 41 A.D.3d 618, 838 N.Y.S.2d 164;People v. Leach, 38 A.D.3d 917, 833 N.Y.S.2d 164;People v. Curella, 296 A.D.2d 578, 746 N.Y.S.2d 30;People v. Knight, 261 A.D.2d 487, 687 N.Y.S.2d 904; CJI2d [N.Y.] Penal Law § 140.25[2]; see also People v. Lewis, 5 N.Y.3d 546, 551, 807 N.Y.S.2d 1, 840 N.E.2d 1014).

The defendant's contentions that the Supreme Court erred in responding to oral questions posed to it by an individual juror in the presence of the attorneys and the defendant without first giving defense counsel a meaningful opportunity to be heard and then giving the jury, in effect, an Allen charge ( see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528), and in not conducting an in camera inquiry to determine whether one of the jurors was “grossly unqualified to serve” (CPL 270.35[1]; see People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901), and that various comments made by the prosecutor during her summation were improper, are unpreserved for appellate review ( seeCPL 470.05[2]; People v. Ramirez, 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791;People v. Kadarko, 14 N.Y.3d 426, 429–430, 902 N.Y.S.2d 828, 928 N.E.2d 1025;People v. DeRosario, 81 N.Y.2d 801, 803, 595 N.Y.S.2d 372, 611 N.E.2d 273;People v. Middleton, 18 A.D.3d 670, 795 N.Y.S.2d 649;People v. Pain, 298 A.D.2d 604, 748 N.Y.S.2d 691;cf. People v. Kisoon, 8 N.Y.3d 129, 135, 831...