People v. Trappier

• Decision Date: 29 November 1995
• Citation: 87 N.Y.2d 55,660 N.E.2d 1131,637 N.Y.S.2d 352
• Parties: , 660 N.E.2d 1131 The PEOPLE of the State of New York, Appellant-Respondent, v. Jonathan TRAPPIER, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 352

637 N.Y.S.2d 352

87 N.Y.2d 55, 660 N.E.2d 1131

The PEOPLE of the State of New York, Appellant-Respondent, v. Jonathan TRAPPIER, Respondent-Appellant.

Court of Appeals of New York.

Nov. 29, 1995.

Robert M. Morgenthau, District Attorney of New York County, New York City (Marc Frazier Scholl and Donald J. Siewert, of counsel), for appellant-respondent.

Kerry A. Brennan, New York City, Philip L. Weinstein and Daniel L. Greenberg, for respondent-appellant.

OPINION OF THE COURT

KAYE, Chief Judge.

Can a defendant intend to cause serious physical injury to another person and at the same time recklessly create a grave risk that death will result from that conduct? We conclude that the two mental states are not mutually exclusive when applied to different outcomes and consequently the jury verdict finding defendant guilty of both attempted first degree assault and first degree reckless endangerment was not repugnant.

Following a dispute between defendant and security guard Vernon Hutchinson over whether defendant had thrown a bottle in the plaza area of an apartment complex, Hutchinson asked defendant and his companion to leave the complex. Defendant vowed, "I'll be back." He and his companion returned later that evening, and from approximately 70 feet away defendant fired three shots in Hutchinson's direction. One bullet hit the leg of Hutchinson's pants, and another travelled just past his ears. Defendant was charged with attempted murder in the second degree (Penal Law § 125.25[1], attempted assault in the first degree (Penal Law § 120.10[1], criminal possession of a weapon in the second degree (Penal Law § 265.03) and reckless endangerment in the first degree (Penal Law § 120.25).

The attempted assault count accused defendant of attempting to cause serious physical injury to Hutchinson with the specific intent to cause such injury. The reckless endangerment count accused defendant of recklessly creating a grave risk of Hutchinson's death.

During its charge, the court instructed the jury that an essential element of attempted first degree assault was that defendant intended to cause serious physical injury which it defined as "a physical injury which creates a substantial risk of death or which causes death or serious and protracted disfigurement or protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Regarding first degree reckless endangerment, the court instructed that defendant was "charged with having recklessly created a grave risk of death to another person under circumstances evincing a depraved indifference to human life." The court then explained that a "person recklessly creates a grave risk of death to another person when he is aware of and consciously disregards a substantial and unjustifiable risk that a grave risk of death will result." None of the four counts was submitted to the jury in the alternative.

Defendant was acquitted of attempted second degree murder but convicted of the remaining counts. Before the jury was discharged, and again in a motion to set aside the verdict at sentencing, defense counsel urged that the jury had found defendant guilty of acting both recklessly and intentionally and that the verdict was therefore repugnant under People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909. The trial court rejected this contention. The Appellate Division, however, reversed defendant's attempted assault and reckless endangerment convictions, concluding that they were legally inconsistent counts. We disagree. ^*

A verdict is inconsistent or repugnant--the difference is inconsequential--where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit (see, CPL 300.30[5] ["(t)wo counts are 'inconsistent' when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other"]. In order to determine whether the jury reached "an inherently self-contradictory verdict" a court must examine the essential elements of each count as charged (People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617; see also, People v. Loughlin, 76 N.Y.2d 804, 806, 559 N.Y.S.2d 962, 559 N.E.2d 656).

In People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909, supra ), we explained that a defendant who acts with the conscious objective of bringing about a particular result cannot simultaneously act with conscious disregard of a substantial and unjustifiable risk that the very result will occur. Gallagher was a homicide case in which the defendant was convicted of both intentional murder and reckless manslaughter of a single victim. Those counts were inconsistent: "where the shooting (the act) and the death (the result) are the same, a defendant cannot be convicted twice for the murder, once for acting 'intentionally' and once for acting 'recklessly' " (id., at 529, 516 N.Y.S.2d 174, 508 N.E.2d 909 [citations omitted].

Here, as in Gallagher, the act--the shooting--is the same for the attempted assault and the reckless endangerment counts. Unlike Gallagher, however, these counts entail two distinct results. The result required under first degree reckless endangerment was the reckless creation of a grave risk of Hutchinson's death. To be guilty of attempted first degree...