THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v TODD R. HEATLEY, Appellant.
Appellate Division of the Supreme Court of New York, Fourth Department
February 14, 2014
980 N.Y.S.2d 701
Fourth Department, February 14, 2014
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), for appellant.
OPINION OF THE COURT
Scudder, P.J.
Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (
I
Contrary to defendant‘s contention, County Court‘s determination that a prosecution witness was not an agent of the government when he spoke to defendant is supported by the record (see People v Young, 100 AD3d 1427, 1427-1428 [2012], lv denied 20 NY3d 1105 [2013]).
Defendant failed to preserve for our review his contention that a prosecutor who participated with him in a demonstration of the altercation during cross-examination thereby provided unsworn testimony (see
Defendant failed to object to the court‘s charge to the jury on the justification defense and thus failed to preserve for our review his contention that the court improperly lowered the People‘s burden of proof to disprove the defense (see
II
We reject defendant‘s contention that the verdict is against the weight of the evidence with respect to the justification defense. Defendant testified that the victim was holding defendant‘s neck under the victim‘s arm while he punched defendant and that defendant felt dizzy and was afraid that he would pass out and then “be demolished.” Defendant testified that he therefore removed two “throwing” knives from a sheath on his belt and stabbed the victim in an effort to have the victim release him. The People established, however, that the victim was five inches shorter and only slightly heavier than defendant and that he was not armed. Thus, we conclude that, although a different verdict would not have been unreasonable, when viewing the elements of the justification defense as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]), the jury did not fail to give the evidence the weight it should be accorded (see People v Massey, 61 AD3d 1433, 1433 [2009], lv denied 13 NY3d 746 [2009]; see also People v Heary, 104 AD3d 1208, 1209 [2013], lv denied 21 NY3d 943 [2013], reconsideration denied 21 NY3d 1016 [2013]).
III
Defendant further contends that the verdict is against the weight of the evidence because the People did not prove beyond a reasonable doubt that he had the requisite intent to kill the victim. We note that defendant does not separately contend that the evidence is legally insufficient to support the conviction (cf. People v Rice, 105 AD3d 1443, 1443-1444 [2013]; People v Stephenson, 104 AD3d 1277, 1278 [2013], lv denied 21 NY3d 1020 [2013]; People v Stepney, 93 AD3d 1297, 1298 [2012], lv denied 19 NY3d 968 [2012]). In any event, defendant failed to renew his motion to dismiss at the close of proof and thus failed to preserve for our review a contention that the evidence is legally
It is undisputed that defendant stabbed the victim eight times with two “throwing” knives and then left the scene and discarded the knives, which were later recovered by the police. The knives were described by a police witness as having two- to three-inch blades, only the tips of which were sharp. Prosecution witnesses testified that the victim was angry and aggressive because he was asked to leave the party and that defendant, and others, attempted to diffuse the situation developing between the victim and his friend, and the host of the party. The People‘s evidence included photographs of defendant that depict extensive bruising on his back and side. The testimony of the Medical Examiner and photographs taken during the autopsy of the victim establish that the victim sustained five stab wounds to the front of the body: three wounds were located in the area of the victim‘s left underarm, one wound was located in the area of the victim‘s right underarm, and another wound was located to the left of the midline of the victim‘s chest. There also were three wounds located on the back of the victim‘s body: one wound was located in the upper back above the left arm, another wound was located in the upper midline area of the back, and the third wound was located in the lower right area of the back. Each lung had a single laceration. The Medical Examiner explained that the lacerations to the lungs had the potential to be life-threatening in the event that fluid entered the lungs, became infected, and resulted in a systemic infection. Only one of the eight wounds, however, was immediately life-threatening. The fatal wound occurred when defendant stabbed the victim in the midline area of the chest, penetrating the right ventricle of the heart. The Medical Examiner also testified that the victim‘s left arm was raised when he was stabbed, that there were no defensive wounds
Although defendant contends that the verdict is against the weight of the evidence with respect to the element of intent, he does not make an actual weight of the evidence argument, i.e., that the overall weight of the evidence, the conflicting testimony, and the inferences that may be drawn therefrom render the verdict against the weight of the evidence (see generally Danielson, 9 NY3d at 348; People v Romero, 7 NY3d 633, 643-644 [2006]; Bleakley, 69 NY2d at 495). Indeed, the facts themselves are essentially undisputed; the testimony of the People‘s witnesses and the physical evidence is consistent with defendant‘s testimony that he stabbed the victim in an effort to have the victim release him during an altercation that the victim initiated. Instead, defendant contends that the verdict is against the weight of the evidence because the credible testimony of the People‘s witnesses does not “prove the elements of the crime beyond a reasonable doubt” (Danielson, 9 NY3d at 349).
We agree with defendant that, despite the number of injuries the victim sustained, including a single fatal stab wound, the credible evidence is not sufficient to prove beyond a reasonable doubt that he intended to kill the victim. Upon our review of the credible evidence presented by the People (see id.), we conclude that the evidence is not sufficient to prove the element of intent to kill because the physical evidence, particularly the location of the stab wounds, supports the conclusion that defendant, during an altercation that the victim initiated, stabbed the victim in an effort to have the victim release him and not with an intent to kill him. Had defendant expressly contended that the evidence is legally insufficient to support the conviction, we would conclude that there is no “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” (Bleakley, 69 NY2d at 495; see Danielson, 9 NY3d at 349).
IV
For the reasons that follow, we decline to dismiss the indictment pursuant to
We recognize, as our concurring colleague explains, that the legislature changed the remedy for reversal of a judgment on a weight of the evidence review from granting a new trial to dismissing the indictment (see L 1970, ch 996, § 1 [
We respectfully disagree with our concurring colleague that People v Cahill (2 NY3d 14 [2003]) supports the conclusion that a judgment may be modified by reducing a conviction to a lesser included offense if the verdict is against the weight of the evidence. Instead, we agree with our dissenting colleague that the unique circumstances involved in Cahill do not apply here. In Cahill, defendant was convicted of two counts of murder in the first degree (
Indeed, the Court described
V
We conclude, as does our dissenting colleague, that
“to determine the scope of weight of the evidence review when a defendant has failed to preserve a challenge to the legal sufficiency of his conviction. In particular, we are asked whether weight of the evidence review requires assessment of the elements of the crime for which defendant is convicted, or whether such review would simply be tantamount to back-door sufficiency review” (id. at 346).
Indeed, the Court concluded that “the Appellate Division majority incorrectly concluded that it was unnecessary to conduct an element-based review” (id. at 349). We interpret that language to require us to determine, in the first instance, whether the evidence was legally sufficient to support the conviction. We therefore conclude that, despite the fact that our review is in the context of a contention that the verdict is against the weight of the evidence, our assessment of the elements of the crime of murder in the second degree under these circumstances is not a determination on the facts (see
V
Thus, based upon our determination that the evidence is not sufficient to establish beyond a reasonable doubt that defendant intended to kill the victim, but it is sufficient to establish beyond a reasonable doubt that he intended to cause serious physical injury to the victim, which resulted in the victim‘s death (see
We have reviewed defendant‘s remaining contentions and conclude that none requires reversal or further modification of the judgment.
Smith, J. (concurring). I respectfully disagree with the majority‘s conclusions “that
Turning to the issues upon which we disagree, I note that the majority concludes that we must review the legal sufficiency of the evidence as part of our weight of the evidence review. The majority further concludes that the evidence in this case is legally insufficient to establish that defendant acted with the requisite intent to cause the death of the victim despite, as noted, defendant‘s failure to preserve the issue for our review and the absence of a request by defendant on appeal for a sufficiency review.
Most importantly, although I agree with the majority that, in reviewing the weight of the evidence, we “must consider the elements of the crime, for even if the prosecution‘s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007]), I conclude that the evidence in this case is legally sufficient to support the conviction with respect to defendant‘s intent to cause the death of the victim. “The standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v Contes, 60 NY2d 620, 621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979], reh denied 444 US 890 [1979]), which, in turn, requires that we “determine 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” (People v Bleakley, 69 NY2d 490, 495 [1987]).
Notwithstanding the legal sufficiency of the evidence with respect to defendant‘s intent to cause the victim‘s death, however, I further conclude that the verdict is contrary to the weight of the evidence on that issue. All of the evidence indicates that defendant stabbed the victim with two knives, both of which had blades that were two to three inches long. The Medical Examiner who performed the autopsy testified that the fatal wound could have been caused by such a knife if the victim‘s chest was compressed at the time that the wound was inflicted, which could result in a wound that is longer than the weapon that caused it. In his testimony concerning the stabbing, defendant described a fight in which the victim was holding defendant and striking him, and the wounds are consistent with defendant‘s testimony that he kept stabbing the victim until the victim released his grip on defendant. The expert medical testimony also established that the victim had only one wound that could be described as a defensive wound, and more such wounds would be expected if defendant were not truthfully describing the incident. In addition, the victim had stab wounds under his arm that were consistent with his being stabbed while that arm was raised or held away from his body, which comports
In addition, the record contains evidence establishing that the victim was the aggressor, and there was evidence that defendant exhibited bruising that could have been caused by the victim holding and punching defendant, consistent with defendant‘s version of the events. The evidence introduced by the People also established that the victim had consumed the drug ecstasy and a significant amount of alcohol during the party that preceded this incident. The evidence further establishes that the incident began when the host of the party told the victim and his friends to leave, but they became belligerent and refused. The People introduced evidence that defendant had the knives at the party prior to the fight in which the victim was killed, but there is no evidence that defendant attempted to use them before he became involved in the fight with the victim. Finally, I agree with the majority and the dissent that the location of the victim‘s wounds are more consistent with defendant‘s version of the events and with an intent to injure the victim than with the intent to kill the victim. Therefore, I agree with the dissent that the verdict is against the weight of the evidence.
The majority and the dissent conclude that, if we determine that the conviction of murder in the second degree is contrary to the weight of the evidence, our only possible remedial action is to dismiss that count of the indictment. I disagree. It is true that the Criminal Procedure Law states that, “[u]pon a reversal or modification of a judgment after trial upon the ground that the verdict. . . with respect to a particular count . . . is against the weight of the trial evidence, the court must dismiss the . . . reversed count” (
“[u]pon reversing or modifying a judgment. . . , an intermediate appellate court must take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect which is the subject of the reversal or modification and to protect
the rights of the respondent. The particular corrective action to be taken or directed is governed in part by,” e.g., CPL 470.20 (5) (emphasis added).
Thus, although
Furthermore, it is clear that the revision of the statute that occurred in 1971, when the Criminal Procedure Law became effective, was intended to create equality between appellate review of the weight of the evidence and of the legal sufficiency of the evidence. Prior to that date, there were cases decided pursuant to the former Code of Criminal Procedure indicating that a new trial was required if a judgment was reversed on appeal because the verdict was against the weight of the evidence (see e.g. People v Slaughter, 34 AD2d 50, 52 [1970]; People v Stein, 15 AD2d 961 [1962]), but dismissal of the indictment was the remedy if the evidence was legally insufficient (see e.g. People v Rice, 35 AD2d 590 [1970], affd 28 NY2d 1 [1971], cert denied sub nom. Colon v New York, 402 US 905 [1971]). In order to remove that distinction, the Temporary Commission on Revision of the Penal Law and Criminal Code recommended a change in this law, as part of the enactment of the Criminal Procedure Law. Thus, it is long settled that subdivisions (2) and (5) of
Moreover, in addition to requiring that the indictment or the relevant count thereof be dismissed when an appellate court determines that the verdict is against the weight of the evidence with respect to that charge, other subdivisions of
“[u]pon a reversal of a judgment after trial for legal insufficiency of trial evidence, the court must dismiss the accusatory instrument. . . [and] [u]pon a modification of a judgment after trial for legal insufficiency of trial evidence with respect to one or more but not all of the offenses of which the defendant was convicted, the court must dismiss the count or counts of the accusatory instrument determined to be legally unsupported and must otherwise affirm the judgment” (
CPL 470.20 [2] ,[3] ).
Thus, the express language of
This Court‘s power to reduce a charge derives from
“[u]pon a determination that the trial evidence adduced in support of a verdict is not legally sufficient to establish the defendant‘s guilt of an offense of which he was convicted but is legally sufficient to establish his guilt of a lesser included offense, the court may modify the judgment by changing it to one of conviction for the lesser offense.”
That section also states, however, that an “intermediate appellate court must either affirm or reverse or modify the criminal
It has long been the rule in New York that a weight of the evidence analysis in a homicide involves review of “the question as to the defendant‘s guilt, as to the grade of his offense if he was guilty, as to his claim that he acted in self-defense or that the homicide was the result of accident” (People v Gaimari, 176 NY 84, 94 [1903] [emphasis added]; see People v Romero, 7 NY3d 633, 640 [2006]). This rule is clearly contrary to the majority‘s position that we may not reduce a crime to a lesser included offense, i.e., to a different grade of offense, upon our review of the weight of the evidence. Thus, I disagree with the majority‘s and dissent‘s interpretation of the statutory scheme.
Most importantly, there are numerous cases in which the appellate courts of New York have reduced convictions to lesser included offenses upon finding that all or part of a verdict is against the weight of the evidence (see e.g. People v Freeman, 98 AD3d 682, 683-684 [2012]; People v Grice, 84 AD3d 1419, 1420 [2011], lv denied 17 NY3d 806 [2011]; People v Harvin, 75 AD3d 559, 560-561 [2010]; People v Alvarez, 38 AD3d 930, 934-935 [2007], lv denied 8 NY3d 981 [2007]; People v Molina, 8 AD2d 930, 931 [1959]), including reducing second-degree murder convictions to lesser included offenses (see e.g. People v Santiago, 97 AD3d 704, 706-707 [2012], lv granted 20 NY3d 935 [2012]; People v Pickens, 60 AD3d 699, 701-702 [2009], lv denied 12 NY3d 928 [2009]; see also People v Dudley, 31 AD3d 264, 264-265 [2006], lv denied 7 NY3d 866 [2006]). Moreover, in People v Cahill (2 NY3d 14, 57 [2003]), the Court of Appeals reviewed the weight of the evidence in a case involving a first-degree murder conviction pursuant to
Accordingly, based upon the broad wording of the statute, the legislative history, and the numerous cases in which the other New York State appellate courts have done so, I disagree with the majority and the dissent and instead conclude that we may reduce the conviction to manslaughter in the first degree based upon the conclusion that the conviction of murder in the second degree is not supported by the weight of the evidence. I further conclude that we should do so here. Inasmuch as the majority concludes that we should reach the same result, I concur in the result.
Fahey, J. (dissenting). I respectfully dissent. The majority and my concurring colleague would effectively eliminate the distinction between legal sufficiency and weight on intermediate appellate review. The practical effect of the majority‘s position is that there would no longer be any reason to preserve the issue of legal sufficiency for at least intermediate appellate review because that issue could be raised in the context of a review based on weight of the evidence. Effectively, this means that the possible benefit of a legal sufficiency review, i.e., conviction of a reduced charge and possibly a reduced sentence, could be obtained without establishing any basis for such an action.
I
The framework for this discussion is set out in
“As we recently made clear in [People v Romero (7 NY3d 633, 636 [2006])], weight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt (People v Crum, 272 NY 348 [1936]).
“Essentially, the court sits as a thirteenth juror and decides which facts were proven at trial (see Tibbs v Florida, 457 US 31, 42 [1982]). Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution‘s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt. Sitting as the thirteenth juror, moreover, the reviewing court must weigh the evidence in light of the elements of the crime as charged to the other jurors, even when the law has changed between the time of trial and the time of appeal (People v Noble, 86 NY2d 814, 815 [1995]).
“A verdict is legally sufficient when, viewing the facts in [the] light most favorable to the People, ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ (People v Acosta, 80 NY2d 665, 672 [1993], quoting People v Steinberg, 79 NY2d 673, 681-682 [1992]). A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained [their] burden of proof.”
II
Here we are presented with a request for only a weight-based review. Indeed, as the majority recognizes, defendant failed to
I agree with the majority‘s recitation of the facts and analysis of the evidence in this case. The People have not proved the charge of murder in the second degree beyond a reasonable doubt. The evidence is particularly deficient on the element of intent.
III
In view of these independent tests and conceptual distinctions, I cannot conclude that a court, when asked to determine whether a verdict is justified on the facts (see People v Bleakley, 69 NY2d 490, 493 [1987]; see also
Our options are limited. There is no basis upon which to create a new third option.
IV
This writing would be incomplete without a few additional points.
First, I join the majority in respectfully disagreeing with the Second Department‘s conclusion that
Second, the decision of the Court of Appeals in People v Cahill (2 NY3d 14 [2003]) does not change my view of the relevant paradigm of CPL article 470. In Cahill, the Court of Appeals, inter alia, reviewed two capital murder counts and concluded that the weight of the evidence did not support the aggravating or “plus” factors required to elevate murder in the second degree to murder in the first degree (id.; compare
V
Accordingly, for the reasons set forth above, I conclude that the judgment should be reversed, the indictment should be dismissed, and the matter should be remitted to County Court for further proceedings pursuant to
It is hereby ordered that the judgment so appealed from is modified as a matter of discretion in the interest of justice and on the law by reducing the conviction of murder in the second degree (