People v. Warner

• Decision Date: 06 May 2021
• Docket Number: 109457
• Citation: 147 N.Y.S.3d 234,194 A.D.3d 1098
• Parties: The PEOPLE of the State of New York, Respondent, v. Paul M. WARNER, Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1098

147 N.Y.S.3d 234

The PEOPLE of the State of New York, Respondent,

v.Paul M. WARNER, Appellant.

109457

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

Calendar Date: March 9, 2021

Decided and Entered: May 6, 2021

Michelle E. Stone, Vestal, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Geoffrey B. Rossi of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered May 19, 2017, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, attempted assault in the first degree, assault in the second degree and overdriving, torturing and injuring animals; failure to provide proper sustenance.

On September 24, 2016, a physical altercation took place in Broome County between current and former members of the Flesh and Blood motorcycle club. During the melee, defendant allegedly fired a shotgun at the victim's van, causing injury to the victim and his dog. In connection therewith, defendant was charged by indictment with attempted murder in the second degree, attempted assault in the first degree, assault in the second degree and overdriving, torturing and injuring animals; failure to provide proper sustenance. Prior to trial, defendant filed an omnibus motion seeking, among other things, suppression of certain evidence seized from the motorcycle clubhouse. County Court summarily denied defendant's motion for lack of standing, finding that he failed to allege any personal privacy interest in the area searched. A jury trial ensued, during which defendant raised a justification defense. Defendant was ultimately convicted as charged and sentenced to concurrent prison terms of 12 years, with five years of postrelease supervision, on the convictions of attempted murder in the second degree and attempted assault in the first degree, and to lesser concurrent terms on the remaining convictions. Defendant appeals.

We affirm. Initially, defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence. "In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Dickinson, 182 A.D.3d 783, 783, 122 N.Y.S.3d 797 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 408, 152 N.E.3d 1210 [2020] ; see People v. Rudge, 185 A.D.3d 1214, 1215, 126 N.Y.S.3d 247 [2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 393, 152 N.E.3d 1195 [2020] ). By contrast, when conducting a weight of the evidence review, this Court "must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Meadows, 183 A.D.3d 1016, 1017, 123 N.Y.S.3d 753 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 825, 151 N.E.3d 506 [2020] ; see People v. Rahaman, 189 A.D.3d 1709, 1710–1711, 136 N.Y.S.3d 192 [2020], lv denied 36 N.Y.3d 1059, 141 N.Y.S.3d 746, 165 N.E.3d 672 [2021] ).

As relevant here, a person commits attempted murder in the second degree when, "with intent to cause the death of another, [he or she] engage[s] in conduct that tend[s] to effect the commission of that crime" ( People v. Greenfield, 167 A.D.3d 1060, 1061, 89 N.Y.S.3d 461 [2018], lv denied 32 N.Y.3d 1204, 99 N.Y.S.3d 245, 122 N.E.3d 1157 [2019] ; see Penal Law §§ 110.00, 125.25[1] ). As to attempted assault in the first degree, the People were required to prove that defendant, "[w]ith intent to cause serious physical injury to another[,] ... attempted to cause such injury by means of a deadly weapon or dangerous instrument" ( People v. Watson, 174 A.D.3d 1138, 1139, 105 N.Y.S.3d 199 [2019] [internal quotation marks, ellipsis and citation omitted], lv denied 34 N.Y.3d 955, 110 N.Y.S.3d 658, 134 N.E.3d 657 [2019] ; see Penal Law §§ 110.00, 120.10[1] ; People v. Conway, 179 A.D.3d 1218, 1219, 116 N.Y.S.3d 118 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ).¹ "Serious physical injury" means, as relevant here, "physical injury which creates a substantial risk of death, or which causes ... serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" ( Penal Law § 10.00[10] ). "Physical injury," in turn, means "impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ). As to the charge of assault in the second degree, the People were required to prove that defendant, "[w]ith intent to cause physical injury to another person, cause[d] such injury to such person ... by means of a deadly weapon or a dangerous instrument" ( Penal Law § 120.05[2] ). To convict defendant of overdriving, torturing and injuring animals – a misdemeanor offense – the People were required to prove, as relevant here, that defendant "unjustifiably injured, maimed, [or] mutilated" an animal ( Agriculture and Markets Law § 353 ; see People v. Bowe, 61 A.D.3d 1185, 1186, 876 N.Y.S.2d 762 [2009], lv denied 12 N.Y.3d 923, 884 N.Y.S.2d 704, 912 N.E.2d 1085 [2009] ).

At trial, the victim testified that he was a former member of the motorcycle club, having been removed around March 2016 due to a monetary dispute. Following his departure, a disagreement arose concerning construction equipment that the victim believed the motorcycle club was wrongfully withholding from him. He testified that, on the afternoon of September 24, 2016, he was standing in his driveway with a friend when he observed defendant's burgundy pickup truck slowly drive by. Another member of the club was sitting in the passenger seat and, according to the victim, was leaning out of the window and waiving something that appeared to be a camera or a gun. The truck then proceeded down the road and out of sight. A few minutes later, the victim observed a silver car approach his residence, which contained another member of the club who was hanging out of the passenger window "brandishing something in the same manner." The victim testified that he put his dog in the passenger seat of his white utility van and pursued the silver car, at one point stopping "nose to nose" with it on the side of the road. When the victim got out of the van to confront the driver, the silver car drove away and the victim followed.

The victim proceeded to the motorcycle clubhouse, where he observed one of the members attempting to hide behind a pickup truck. The victim testified that he grabbed a billy club and a can of pepper spray from his van, approaching the club member to confront him. Two more club members came outside at that time and the victim admitted that he began hitting them with the billy club to keep them in front of him. The victim then saw defendant run out of the clubhouse with another individual. The victim testified that he used pepper spray on the group and could hear his dog barking in the car during the altercation. Realizing that he was outnumbered, the victim retreated to his car, backed into the street and began to pull away. He then heard one of the club members say "shoot," and saw defendant run towards the van with a shotgun. The victim explained that he pushed the dog's head down and heard the shotgun go off, knowing almost immediately that he was hit based upon the blood he coughed up on the windshield. The victim then drove to a nearby delicatessen, where he obtained help after a bystander called 911.

The People entered into evidence the surveillance video from the incident, which tended to corroborate the victim's testimony. On the video, the victim can be seen pulling his van into the parking lot of the motorcycle clubhouse, with the outline of a dog shown in the passenger's seat. The victim then exits the vehicle with a billy club and walks toward the front of a burgundy pickup truck. A member of the club exits the clubhouse with something in his hand and follows the victim behind the pickup truck. The victim then backs up toward his van, with several club members coming towards him. The victim begins hitting the club members with a billy club and defendant runs outside of the clubhouse with a long pole in his hand, walking past the passenger's side of the victim's van – where the outline of a dog can be seen – and toward the victim, who is using pepper spray on the group. Defendant then runs back toward the front of the clubhouse as the victim continues to use pepper spray and eventually walks back to his van. The victim gets back into the driver's side of the van, one of the club members throws something at it, and the victim reverses the van to the left so that the passenger side is facing perpendicular to the front of the clubhouse. Defendant then runs into the frame with a shotgun, takes aim and shoots as the victim is moving the van forward to leave.

The witness testimony also supported the victim's recitation of the incident. In that respect, a high school student testified that she was at a nearby laundromat on the date of the incident when she saw "five or six guys coming down the street arguing," some of whom were carrying pipes. She observed a white van in the vicinity and, toward the end of the altercation, heard one of the men say, "Where is my shotgun?" According to this witness, the crowd then dispersed and...