People v. Simmons

• Decision Date: 22 June 2010
• Citation: 74 A.D.3d 1247,904 N.Y.S.2d 719
• Parties: The PEOPLE, etc., appellant, v. Ricky SIMMONS, respondent.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 719

74 A.D.3d 1247

The PEOPLE, etc., appellant,

v.Ricky SIMMONS, respondent.

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

June 22, 2010.

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

Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for respondent.

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

Appeal by the People from so much of an order of the Supreme Court, Kings County (D'Emic, J.), entered February 4, 2009, as granted that branch of the defendant's motion pursuant to CPL 330.30 which was to reduce his conviction of murder in the first degree to murder in the second degree.

ORDERED that the order is affirmed insofar as appealed from.

In considering a motion to set aside or modify a verdict pursuant to CPL 330.30(1), a trial court may only consider questions of law, not fact ( see People v. Ventura, 66 N.Y.2d 693, 695, 496 N.Y.S.2d 416, 487 N.E.2d 273; People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6; People v. Sadowski, 173 A.D.2d 873, 873-874, 571 N.Y.S.2d 77). Moreover, a court may only consider claims of error which are properly preserved for appeal ( see People v. Silas, 308 A.D.2d 465, 466, 764 N.Y.S.2d 193; People v. Sadowski, 173 A.D.2d at 874, 571 N.Y.S.2d 77). However, an objection raised after the initial charge is given will be considered timely provided that it is raised prior to the verdict and at a time which affords the courtan opportunity to correct its error ( see People v. Albert, 85 N.Y.2d 851, 853, 623 N.Y.S.2d 848, 647 N.E.2d 1356; People v. Khan, 68 N.Y.2d 921, 922, 510 N.Y.S.2d 72, 502 N.E.2d 987; People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212).

In this case, the defendant properly preserved his objection to the Supreme Court's instruction regarding first degree murder by requesting clarification in the Supreme Court's supplemental jury instructions and objecting that the supplemental instructions, when given, did not contain the requested distinction regarding intent. Accordingly, the objection raised by the defendant was properly preserved for appellate review ( see People v. Whalen, 59 N.Y.2d at 280, 464 N.Y.S.2d 454, 451 N.E.2d 212).

In People v. Cahill, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561, the Court of Appeals held that a defendant facing prosecution for murder under Penal Law § 125.27(1)(a)(vii) was entitled to jury instructions which made clear that, when used to aggravate the crime of murder, the criminal intent for burglary must be distinct from the intent to kill ( see People v. Cahill, 2 N.Y.3d at 64-66, 777 N.Y.S.2d 332, 809 N.E.2d 561; People v. Lucas, 11 N.Y.3d 218, 222, 868 N.Y.S.2d 570, 897 N.E.2d 1052). In the instant case, the Supreme Court, despite the defendant's objection, did not make this distinction for the jury. Since this error was not harmless ( cf. People v. Brown, 87 N.Y.2d 950, 951, 641 N.Y.S.2d 225, 663 N.E.2d 1255; People v. Cahill, 2 N.Y.3d at 64-65, 777 N.Y.S.2d 332, 809 N.E.2d 561; see generally People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345), and it is impossible to determine whether the jury relied on the defendant's intent to kill the victim or instead to commit some other crime ( see People v. Martinez, 83 N.Y.2d 26, 32, 607 N.Y.S.2d 610, 628 N.E.2d 1320, cert.denied 511 U.S. 1137, 114 S.Ct. 2153, 128 L.Ed.2d 880, citing Griffin v. United States, 502 U.S. 46, 51-55, 112 S.Ct. 466, 116 L.Ed.2d 371), the Supreme Court properly reduced the defendant's conviction from murder in the first degree to murder in...