People v. Thorpe

Citation141 A.D.3d 927,35 N.Y.S.3d 769,2016 N.Y. Slip Op. 05586
PartiesThe PEOPLE of the State of New York, Respondent, v. Scott THORPE, Appellant.
Decision Date21 July 2016
CourtNew York Supreme Court — Appellate Division

Michelle E. Stone, Vestal, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Hannah E.C. Moore, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY, CLARK and MULVEY, JJ.

CLARK

, J.

Appeal from a judgment of the County Court of Washington County (Hall Jr., J.), rendered March 18, 2011, upon a verdict convicting defendant of the crimes of kidnapping in the second degree, attempted murder in the second degree, assault in the second degree, assault in the third degree, conspiracy in the second degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree, gang assault in the second degree, menacing in the second degree, coercion in the first degree, criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, criminal sale of a controlled substance in the fifth degree, criminal possession of marihuana in the third degree and robbery in the first degree. In April 2010, William Dingman lured the victim to a partially-constructed house under the pretense of performing roofing work for the owner. After descending from the roof, the victim was confronted by defendant, Richard Cates and Dingman and, following a brief struggle, was forced into the basement of the house. The victim's hands were tied around a pole and he was told to choose how he would like to die: either by chainsaw or by overdose. The victim, who was a recovering cocaine addict, chose overdose and was thereafter forced by defendant and his accomplices to ingest heroin and ecstasy and was injected with various substances, including heroin and air. When defendant and his accomplices ran out of drugs and the hypodermic needle broke, they decided that they would drive the victim to a different location, where they would force the victim—at gunpoint—to slit his wrist. The victim ultimately escaped from the car and sought medical attention.

Defendant was charged in a 19–count indictment and, following a jury trial, convicted of 15 counts: kidnapping in the second degree, attempted murder in the second degree, assault in the second degree, assault in the third degree, conspiracy in the second degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree, gang assault in the second degree, menacing in the second degree, coercion in the first degree, criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, criminal sale of a controlled substance in the fifth degree, criminal possession of marihuana in the third degree and robbery in the first degree. County Court sentenced him, as a second felony offender, to an aggregate prison term of 75 years to be followed by five years of postrelease supervision.1 Defendant now appeals.

Defendant argues that his convictions for attempted murder in the second degree and gang assault in the second degree are not supported by legally sufficient evidence and are against the weight of the evidence. Inasmuch as defendant made only a general motion to dismiss at the close of the People's proof, his challenge to the legal sufficiency of the evidence is unpreserved (see People v. Powell, 128 A.D.3d 1174, 1175, 9 N.Y.S.3d 452 [2015]

; People v. Junior, 119 A.D.3d 1228, 1229, 990 N.Y.S.2d 689 [2014], lv. denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ). Nevertheless, in conducting our weight of the evidence review, we necessarily consider whether all of the elements of the charged crimes were proven beyond a reasonable doubt (see

People v. Briggs, 129 A.D.3d 1201, 1202, 13 N.Y.S.3d 255 [2015], lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 167, 43 N.E.3d 377 [2015] ; People v. Santiago, 118 A.D.3d 1163, 1164, 987 N.Y.S.2d 692 [2014], lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014]

). In a weight of the evidence review, where a different finding would not have been unreasonable, we “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citations omitted]; accord

People v. Carnevale, 101 A.D.3d 1375, 1377, 957 N.Y.S.2d 746 [2012] ).

For a conviction of attempted murder in the second degree, the People were required to prove that defendant, acting with intent to cause the death of another, engaged in conduct which tended to effect the commission of that crime” (People v. Greenfield, 112 A.D.3d 1226, 1226, 977 N.Y.S.2d 486 [2013]

, lv. denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ; see Penal Law §§ 110.00, 125.25[1] ). To obtain a conviction for gang assault in the second degree, the People had to prove that, “with intent to cause physical injury to another person and when aided by two or more other persons actually present, [defendant] cause[d] serious physical injury to such person” (Penal Law § 120.06 ). The term [p]hysical injury’ means impairment of physical condition or substantial pain” (Penal Law § 10.00 [9 ] ) and the term [s]erious physical injury” means, as relevant here, “physical injury which creates a substantial risk of death” (Penal Law § 10.00[10] ).

At trial, the victim testified that defendant, Cates and Dingman tied his hands around a pole in the basement of the house and told him that they were going to kill him for stealing 11 pounds of marihuana from defendant 14 years earlier. The victim stated that defendant told him that it was “going to go one way or the other,” namely, that he could be cut up, buried and his body never found or his family could believe that he died of an overdose. According to the victim, defendant was “in control the whole time” and told the others what to do. The victim asserted that, after choosing an overdose, defendant and his accomplices “pull[ed his] head back” to make him sniff heroin, dumped beer down his face, caused heroin and cocaine to be injected into veins in his inner arms between four and eight times and forced him to swallow a “handful of ecstasy a couple of times.” According to the victim, defendant stated, “you're going out like a big drug dealer” and, at some point, asked, “how much cocaine is it going to take to kill you?” The victim vomited several times. He further testified that defendant and his accomplices had a knife and a gun, showed him pictures of mutilated people, including children, who defendant claimed to have killed and took pictures and videos of the incident. The victim testified that defendant and his accomplices also injected him with air in an effort to stop his heart and that they were all screaming “die” as they did so. The victim asserted that the needle broke and that, because he was fearful that defendant and his accomplices would then resort to using the chainsaw to kill him, he suggested that they force him to slit his wrist. Defendant accepted this plan, dictated a suicide note to the victim and, at gun point, forced the victim into the car from which he ultimately escaped. The victim testified that the trauma of the ordeal caused him to lapse into a period of heavy drinking and marihuana use and resulted in him losing his job and his admission to a mental health unit.

The victim's account of the harrowing incident was largely corroborated through the testimony of Dingman, investigators in the Washington County Sheriff's Office and the emergency room physician that treated the victim, as well as the forensic evidence and the numerous pictures and videos admitted into evidence, which depicted the victim in a distressed state during the terrifying ordeal. According to Dingman, defendant had developed the plan to lure the victim to the house, had often expressed a desire to kill the victim and threatened to harm the victim's children if the victim did not cooperate. Dingman stated that the victim was forced to sniff [p]owder,” swallow pills and inject himself with heroin while at gunpoint. Dingman further testified that, when the overdose plan was unsuccessful, defendant was going to force the victim to slit his wrist. The investigators found a syringe in both the basement and the vehicle from which the victim escaped and, with Dingman's assistance, located a bag—containing pills, a rope and gloves—hidden by defendant on the side of the road. DNA consistent with the victim was found on both syringes.

The emergency room physician testified that the victim had four puncture marks on his right inner arm and tested positive for opiates and cocaine. He stated that the victim reported nausea, vomiting and a pain level of 6 out of 10, had an elevated pulse, respiratory rate and blood pressure and had a high glucose level and white blood count. He testified that an overdose of heroin

and cocaine can result in death, as cocaine causes increased blood pressure and other blood pressure-related problems and heroin prevents a portion of the brain from functioning. The physician further asserted that injections of air into the body can cause “a lot of very harmful things,” such as stroke and death.

While a different result would not have been unreasonable, viewing the foregoing evidence in a neutral light and according deference to “the jury's unique opportunity to view the witnesses, hear the testimony and observe demeanor” (People v. Lanier, 130 A.D.3d 1310, 1311, 15 N.Y.S.3d 241 [2015]

[internal quotation marks and citations omitted], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ), we are satisfied that defendant's convictions for attempted murder in the second degree and...

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