People v. Spencer, 1237

• Decision Date: 13 March 2020
• Docket Number: KA 15–01398,1237
• Citation: 181 A.D.3d 1257,120 N.Y.S.3d 536
• Parties: The PEOPLE of the State of New York, Respondent, v. Devante SPENCER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

181 A.D.3d 1257

120 N.Y.S.3d 536

The PEOPLE of the State of New York, Respondent,

v.Devante SPENCER, Defendant–Appellant.

1237

KA 15–01398

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

Entered: March 13, 2020

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is modified on the law by reversing those parts convicting defendant of two counts of assault in the first degree and one count of criminal use of a firearm in the first degree and dismissing counts two through four of the indictment against him, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ), criminal use of a firearm in the first degree (§ 265.09[1][a] ), criminal possession of a weapon in the second degree (§ 265.03[3] ), and two counts of assault in the first degree (§ 120.10[1] ). The conviction arises from an incident in which a codefendant shot three men on a street in Rochester, killing one and wounding two. Defendant, who drove the shooter to and from the crime scene and provided the weapon used to shoot the victims, was charged as an accessory to all three shootings. Defendant contends that the evidence is legally insufficient to support the conviction of murder in the second degree and assault in the first degree because the People failed to establish that he possessed the requisite mental state for the commission of those crimes (see § 20.00). "Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" ( People v. Sunset Bay, 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ; see People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Perkins, 160 A.D.3d 1455, 1455, 76 N.Y.S.3d 700 [4th Dept. 2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018] ), we conclude that the evidence is legally sufficient with respect to the murder conviction, but it is not legally sufficient with respect to the assault and criminal use of a firearm convictions.

Insofar as relevant here, a person is guilty of murder in the second degree when, "[w]ith intent to cause the death of another person, he [or she] causes the death of such person" ( Penal Law § 125.25[1] ). Defendant was convicted of murder under a theory of accessorial liability, and a person is criminally liable for the conduct of another "when, acting with the mental culpability required for the commission thereof, he [or she] solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct" (§ 20.00; see People v. McDonald, 172 A.D.3d 1900, 1901, 100 N.Y.S.3d 462 [4th Dept. 2019] ). A defendant's intent to kill may be inferred from his or her conduct as well as the circumstances surrounding the crime (see People v. Price, 35 A.D.3d 1230, 1231, 825 N.Y.S.2d 868 [4th Dept. 2006], lv denied 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462 [2007] ). Here, the People presented evidence establishing that defendant shared his codefendant's intent to kill the victim and intentionally aided the codefendant by, inter alia, planning the shooting beforehand, informing the codefendant where the victim was located, driving the codefendant to that location, providing the weapon used in the shooting, and driving the codefendant away from the scene immediately thereafter (see People v. Cabassa, 79 N.Y.2d 722, 728, 586 N.Y.S.2d 234, 598 N.E.2d 1 [1992], cert. denied 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563 [1992] ; People v. Rutledge, 70 A.D.3d 1368, 1369, 894 N.Y.S.2d 668 [4th Dept. 2010], lv denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 [2010] ).

We reach a different result with respect to the assault counts, however, and we therefore modify the judgment by reversing those parts convicting defendant of assault in the first degree and dismissing the second and third counts of the indictment against him. Like the count of murder in the second degree, defendant was charged with those crimes as an accessory, but the People alleged that defendant was guilty of the assault charges under the theory of transferred intent. "The doctrine of ‘transferred intent’ serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other ‘lucky mistake,’ the intended target was not the actual victim" ( People v. Fernandez, 88 N.Y.2d 777, 781, 650 N.Y.S.2d 625, 673 N.E.2d 910 [1996] ; see People v. Dubarry, 25 N.Y.3d 161, 170–172, 8 N.Y.S.3d 624, 31 N.E.3d 86 [2015] ). Although that theory may be applied to assault charges (see e.g. People v. Williams, 124 A.D.3d 920, 921, 1 N.Y.S.3d 372 [2d Dept. 2015], lv denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ; People v. Jacobs, 52 A.D.3d 1182, 1184, 859 N.Y.S.2d 541 [4th Dept. 2008], lv denied 11 N.Y.3d 926, 874 N.Y.S.2d 11, 902 N.E.2d 445 [2009] ), County Court's jury instruction in this case mandated that the jury could convict defendant of the counts of assault in the first degree only if they found that he acted "with the intent to cause serious physical injury to" each assault victim, rather than instructing the jury that they could convict defendant of those crimes if they concluded that he intended to cause such injury to the deceased victim but the codefendant actually caused injury to the assault victims. The prosecution did not object to that charge, and it is well settled that, when reviewing a "jury's guilty verdict, our review is limited to whether there was legally sufficient evidence ... based on the court's charge as given without exception " ( People v. Sala, 95 N.Y.2d 254, 260, 716 N.Y.S.2d 361, 739 N.E.2d 727 [2000] ; see People v. Prindle, 16 N.Y.3d 768, 770, 919 N.Y.S.2d 491, 944 N.E.2d 1130 [2011] ; People v. Ford, 11 N.Y.3d 875, 878, 874 N.Y.S.2d 859, 903 N.E.2d 256 [2008] ). Inasmuch as there is insufficient evidence that defendant knew that either of the assault victims was present or that he intended any harm to either of them (cf. People v. Allah, 71 N.Y.2d 830, 831–832, 527 N.Y.S.2d 731, 522 N.E.2d 1029 [1988] ), we conclude that the evidence is not legally sufficient with respect to the assault counts as charged to the jury.

Contrary to the supposition in the dissent, we do not overtly nor implicitly disavow our decision in Jacobs, in which we affirmed "a conviction of assault ..., which was based on a theory of transferred intent" ( 52 A.D.3d at 1184, 859 N.Y.S.2d 541 ). Although the dissent is correct that the court's initial charge there was similar to the one given here, we affirmed in that case because "[t]he record establishe[d] that the court's final charge on [the assault] count, to which there was no objection by defendant, adequately set forth the elements of that crime" ( id. ). In that final charge in Jacobs, the court responded to a jury question regarding whether the pertinent assault charge applied to contact with someone who was not the intended victim, and the court thereafter correctly explained the law of transferred intent to the jury. Here, to the contrary, the court only instructed the jurors that, in order to convict defendant of assault in the first degree regarding the injured victim, they must be convinced beyond a reasonable doubt that defendant had "the intent to cause serious physical injury to [the injured victim]," rather than specifying the name of the deceased victim whom defendant intended that the codefendant harm.

We also reject the dissent's supposition that our determination will call into question the Criminal Jury Instructions (CJI). We continue to "urge Trial Judges ... to use the language set forth in the current Criminal Jury Instructions" ( People v. Slater, 270 A.D.2d 925, 926, 705 N.Y.S.2d 777 [4th Dept. 2000], lv denied 95 N.Y.2d 858, 714 N.Y.S.2d 9, 736 N.E.2d 870 [2000] ), and indeed we note that if the court here had complied with the CJI directive to "(specify )" the person to whom defendant intended that the codefendant cause injury (CJI2d[NY] Penal Law § 120.10[1] ), this issue would not be present.

The evidence is also legally insufficient with respect to the criminal use of a firearm in the first degree count, and we therefore further modify the judgment accordingly. With respect to that count, the indictment charged defendant with using a loaded firearm during the commission of the crime of assault in the first degree. Although the court's jury instructions did not specify assault in the first degree as the underlying crime for the criminal use of a firearm in the first degree count, and defendant did not object to the court's instructions and thus did not preserve this issue for our review, we conclude that "preservation is not required" ( People v. Greaves, 1 A.D.3d 979, 980, 767 N.Y.S.2d 530 [4th Dept. 2003] ), inasmuch as "defendant has a fundamental and nonwaivable right to be tried only on the crimes charged" in the indictment ( People v. Duell, 124 A.D.3d 1225, 1226, 999 N.Y.S.2d 288 [4th Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015] [internal quotation marks omitted]; see Greaves, 1 A.D.3d at 980, 767 N.Y.S.2d 530 ; People v. Burns, 303 A.D.2d 1032, 1033, 757 N.Y.S.2d 199 [2003] ). Therefore, based on the indictment, defendant could only be convicted of that charge if he committed assault in the first degree (cf. People v. Canteen, 295 A.D.2d 256, 256–257, 744 N.Y.S.2d 380 [1st Dept. 2002], lv denied 98 N.Y.2d 729, 749 N.Y.S.2d 479, 779 N.E.2d 190 [2002] ; People v. Gerard, 208 A.D.2d 421, 422, 618 N.Y.S.2d 629 [1st Dept. 1994], lv denied 85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629 [1995] ). Thus, we conclude that, because "the conviction[s] of assault in the first degree cannot stand, the conviction of criminal use of a firearm in the first degree, which requires commission of [the] class B violent felony offense [of assault in the first...