People v. Vukel

• Decision Date: 24 July 1998
• Citation: 178 Misc.2d 218,682 N.Y.S.2d 331
• Parties: , 1998 N.Y. Slip Op. 98,523 The PEOPLE of the State of New York, Plaintiff, v. Joseph VUKEL, Defendant.
• Court: New York Supreme Court

Page 331

682 N.Y.S.2d 331

178 Misc.2d 218, 1998 N.Y. Slip Op. 98,523

The PEOPLE of the State of New York, Plaintiff, v. Joseph VUKEL, Defendant.

Supreme Court, Bronx County.

July 24, 1998.

Bennett M. Epstein for defendant.

Robert T. Johnson, District Attorney of Bronx County (Athanasia Apostolakos of counsel), for plaintiff.

DOMINIC R. MASSARO, Justice.

Joseph Vukel stands convicted of the crimes of attempted murder in the second degree (Penal Law, Sec. 125.25[1] ) and assault in the second degree (Penal Law, Sec. 120.05[2] ). He now prays for the Court to set aside the attempted murder guilty verdict pursuant to C.P.L. 330.30(1).

Factual Findings

In the early morning hours of July 5, 1991, Patrick Hayes, while sitting on a bench alongside Van Cortland Park in The Bronx, became the victim of a baseball bat attack carried out by two brothers: Anthony Vukel and the within Defendant, Joseph Vukel. The assailants, the testimony reveals, drove by the given location several times while observing their intended victim. Finally, their vehicle pulled alongside the curb opposite Mr. Hayes. Anthony Vukel jumped out of the automobile and ran toward Mr. Hayes with a raised wooden baseball bat. He swung the bat at his head, but Mr. Hayes ducked, and the blow was absorbed on his back. Hayes was able to grab hold of and wrestle this assailant, striking him on the head with a can of beer that he had been drinking, and causing him to fall to the ground. While Anthony Vukel was on his back, Hayes placed his foot on the assailant's chest and seized the bat. Hayes testified that as he wrested the bat from Anthony Vukel's hands, Joseph Vukel came at him and smashed a second baseball bat to his head. The complainant fell from the force of the blow. At this point, Defendant, standing over Hayes, yelled "Yeah, what's up now? You dead, now. You mother f[ucker]," ¹ and smashed Hayes yet again with the bat over the back of his head. Anthony Vukel was now standing again, bat in hand. The victim also managed to stand; and, fearing that he was about to be killed, grabbed at the brother and pulled him over his face and head as a shield against Defendant's blows. While being held, Anthony Vukel was punching the victim in the face with a free hand. His side vulnerable, Mr. Hayes was struck repeatedly with the baseball bat about his pelvis, back, arms and legs by Defendant who was screaming that Hayes was "dead." ² People in the vicinity began yelling, causing the assailants to retreat to their car and flee. Mr. Hayes was rushed to a local hospital in a flagged down vehicle.

The 330.00 Contentions

Defendant's contentions in support of his motion to set aside the verdict are threefold. He claims, first, that blunt force head wounds such as those sustained by the complainant in the instant case "have never been a legally sufficient predicate for attempted murder." By way of contrast, he asserts that "almost all of the attempted murder cases ... in this State have occurred as a result of gunshots or stabbings." Second, Defendant states that the herein case involves "no life-threatening injuries," and, alternatively, "attempted murder convictions result[ing] from the use of blunt force have been rare indeed and non-existent without life-threatening injury." Lastly, Defendant contends that the weight of the evidence herein is against the sustaining of an attempted murder guilty verdict.

The Court notes that Mr. Vukel does not contest the sufficiency of the evidence respecting his conviction for assault in the second degree (Penal Law, Sec. 120.05[2] ). Therefore, that conviction is not at issue and needs no review.

The Legal Standard

C.P.L. 330.30(1) allows a court to set aside or modify a verdict if there is an error which, if raised on appeal from a prospective judgment of conviction, would require reversal or modification of the judgment as a matter of law by an appellate court (People v. Colon, 65 N.Y.2d 888, 493 N.Y.S.2d 302, 482 N.E.2d 1218 [1985]; People v. Echevarria, 233 A.D.2d 200, 650 N.Y.S.2d 98, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506 [1st Dept., 1997]; People v. Carthrens, 171 A.D.2d 387, 577 N.Y.S.2d 249 [1st Dept., 1992] ). The power given to the trial judge under C.P.L. 330.30(1) is "normally limited to a determination that the trial evidence was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted" (People v. Echevarria, supra at 202, 650 N.Y.S.2d 98, quoting People v. Carter, 63 N.Y.2d 530, 483 N.Y.S.2d 654, 473 N.E.2d 6 [1984] ).

The controlling penal statutes herein read as follows:

"A person is guilty of murder in the second degree when:

"1. With intent to cause the death of another person, he causes the death of such person" (Penal Law, Sec. 125.25[1] ).

"A person is guilty of an attempt to commit a crime when, with the intent to commit a crime, he engages in conduct which tends to effect the commission of such crime" (Penal Law, Sec. 110.00).

The burden in a criminal case lies with the People to prove beyond a reasonable doubt each and every element of any given crime. In order to prove the charge of attempted (intentional) murder, the People must establish that this Defendant had the intent to commit the specific underlying crime in question (see People v. Coleman, 74 N.Y.2d 381, 547 N.Y.S.2d 814, 547 N.E.2d 69 [1989] ), here murder, and that his conduct went far enough toward completion of that intent to make for his guilt of its attempt (see People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989]; People v. Warren, 66 N.Y.2d 831, 498 N.Y.S.2d 353, 489 N.E.2d 240 [1985] ). Conviction, then, requires a demonstration that the twin elements, that is, "intent" and "conduct which tends to effect the commission of such crime" (Penal Law, Sec. 110.00) are in tandem. This is the legal standard. For the People to prove "mere intent is not enough; the performance of an act is also necessary" (Torcia, ed., Wharton's Criminal Law [14th Edition], Vol. 4, Sec. 744, p. 572 [1981] ).

It has long been held that the act in question "need not be the final one toward the completion of the offense" (People v. Sullivan, 173 N.Y. 122, 133, 65 N.E. 989 [1903] ), but must "carry the project forward within dangerous proximity to the criminal end to be attained" (see People v. Werblow, 241 N.Y. 55, 148 N.E. 786 [1925] ). While no general rule has been formulated beyond the axis of the intent/act elements, the boundary where intent ripens into punishable conduct depends greatly on a case-by-case evaluation of the factual situation presented (see People v. Ludwig, 155 A.D.2d 558, 547 N.Y.S.2d 414 [2d Dept., 1989] ).

Blunt Force

Defendant's first contention that blunt force head wounds are a legally insufficient predicate for conviction of attempted murder--which Defendant holds is satisfied almost exclusively in this State by the infliction of gunshots or stabbings--is without foundation. The Penal Law does not delineate a specific method or instrumentality by which "death of another person" must be caused (Penal Law, Sec. 125.25[1] ). A reading of section 10.00(13) of the Penal Law defines "dangerous instrument" as "any instrument, article or substance ... which, under the circumstances in which it is used, attempted to be used ... is readily capable of causing death" (Penal Law, Sec. 10.00[13]; see People v. Ludwig, 155 A.D.2d 558, 547 N.Y.S.2d 414 [2d Dept., 1989] ). Messrs. LaFave and Scott, in their volume on the Criminal Law, posit the question of whether an instrument is deadly on two factors: 1) what it intrinsically is and 2) how it is used; they conclude that "if almost anyone can kill with it, it is a deadly weapon when used in a manner calculated to kill" (LaFave and Scott, Criminal Law [2d Edition], Sec. 7.2, p. 614 [1986] ).

In the instant case, each assailant, acting in concert, was armed with a baseball bat. Both beat the complainant by swinging the said bats and landing "at least ten" repeated blows to his head and body. In People v. Ozarowski, 38 N.Y.2d 481, 381 N.Y.S.2d 438, 344 N.E.2d 370 [1976], Judge Fuchsberg specifically discussed the issue of a baseball bat as a dangerous instrument with a pithy observation (at 491, 381 N.Y.S.2d at 444, 344 N.E.2d at 376, n. 3): "It is too obvious to need elaboration that when used outside its sports context, it is a dangerous instrument of the very type recognized as an effective weapon since primitive times."

There are a myriad of New York cases involving methods or instruments other than guns and knives utilized to attempt the crime of murder (see, generally, People v. Gonzalez, 223 A.D.2d 653, 636 N.Y.S.2d 846, appeal denied 88 N.Y.2d 848, 644 N.Y.S.2d 694, 667 N.E.2d 344 [2d Dept., 1996]; People v. Larrabee, 201 A.D.2d 924, 607 N.Y.S.2d 769, appeal denied 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987 [4th Dept., 1994]; People v. Applegate, 176 A.D.2d 888, 576 N.Y.S.2d 583, appeal denied 79 N.Y.2d 853, 580 N.Y.S.2d 724, 588 N.E.2d 759 [2d Dept., 1992]; People v. Fisch, 175 A.D.2d 926, 573 N.Y.S.2d 762, appeal denied 79 N.Y.2d 856, 580 N.Y.S.2d 728, 588 N.E.2d 763 [2d Dept., 1992]; People v. Goss, 136 A.D.2d 653, 523 N.Y.S.2d 885, appeal denied 71 N.Y.2d 1027, 530 N.Y.S.2d 562, 526 N.E.2d 54 [2d Dept., 1988] ).

Undoubtedly, a wooden baseball bat used to render forceful blows to its victim's head could be construed by a jury as readily capable of causing death. In our criminal jurisprudence, one can be presumed to intend the natural and probable consequences of his act. As such, one who intentionally uses a deadly weapon on another and thereby attempts to kill him presumably intends to kill him. A jury may, but need not, accept the permissible inference supported by this presumption, which, of course, is rebuttable (see People v. Mertz, 68 N.Y.2d 136, 506 N.Y.S.2d 290, 497 N.E.2d 657 [1986] [jury prerogative]; People v. McKenzie, 67 N.Y.2d 695, 499 N.Y.S.2d 923, 490 N.E.2d 842 [1986...