People v. LavalleyPeople v. Lavalley
Decided and Entered: February 22, 2018
Calendar Date: January 16, 2018
Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.
Mark Schneider, Plattsburgh, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. of counsel), for respondent.
MEMORANDUM AND ORDER
Devine, J.
Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered August 17, 2016, upon a verdict convicting defendant of the crimes of assault in the second degree and criminal possession of a weapon in the fourth degree.
On a clear day in December 2014, defendant was hunting alone with a shotgun despite being barred from possessing one due to his prior criminal history. He shot at an animal in the woods that turned out to be another hunter, and the victim was struck and seriously injured. As a result of the incident, defendant was charged in an indictment with assault in the second degree and criminal possession of a weapon in the fourth degree. Defendant was convicted as charged following a jury trial, and County Court sentenced him to an aggregate prison term of seven years to be followed by postrelease supervision of three years. Defendant now appeals, focusing upon his conviction for assault in the second degree.
While there is no dispute that defendant shot and seriously injured the victim, defendant argues that the trial evidence was legally insufficient to support a finding that he “recklessly cause[d] serious physical injury” in order to support a conviction for assault in the second degree (
In that regard, a hunting safety instructor testified that mistaking a person for game is the most common cause of hunting mishaps and that defendant was made aware of that risk during a required safety course for hunters in which it was stressed that a hunter must be “100 percent sure of [the] target” before opening fire. Defendant had additionally spoken to the renter of the property to obtain permission to hunt and, in so doing, learned that the victim was permitted to hunt there. The People further submitted into evidence photographs of the scene, and the photographer testified that he had stood in defendant‘s position and was able to recognize a person in the victim‘s location as a human being. Defendant‘s own statements to investigators reveal a lack of effort to confirm his belief that he was observing an antlered male deer that he was entitled to shoot, as he heard something moving, watched a “large brown thing” move through the trees and then opened fire.
The jury could rationally find from the foregoing that defendant was aware that he would create a substantial and unjustifiable risk of serious physical injury to others in general and the victim in particular if he opened fire without being sure of his target. The jury could further determine that he consciously disregarded that risk when he shot at an animal without adequate efforts to identify it and, in so doing, acted with “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community‘s general sense of right and wrong” (People v Asaro, 21 NY3d 677, 685 [2013] [internal quotation marks and citations omitted]; accord People v Briskin, 125 AD3d 1113, 1119 [2015], lv denied 25 NY3d 1069 [2015]). The conviction for second-degree assault is therefore supported by legally sufficient proof (see People v Cruciani, 36 NY2d 304, 305-306 [1975]; People v George, 43 AD3d 560, 563-564 [2007], affd 11 NY3d 848 [2008]; People v Grenier, 250 AD2d 874, 876-877 [1998], lv denied 92 NY2d 898 [1998]).1
Defendant next contends that County Court erred in refusing his request to charge the lesser included offense of assault in the third degree (see
As for whether a reasonable view of the evidence would support a finding that defendant committed the lesser offense but not the greater, County Court found that it would not because the victim — who was shot in the hand and abdomen, would have died without treatment and required surgery, hospitalization and physical therapy to recover — indisputably sustained
Defendant argued that the jury could reasonably find from the trial proof that he did not act recklessly so as to commit assault in the second degree (see
In that regard, defendant knew that the victim had permission to hunt on the property where the shooting occurred, but also told investigators that he had seen no sign of the victim or anyone else in the three weeks that he had been hunting in the area. The victim confirmed that the area was not frequented by hunters, testifying that he had never seen another person in the 30 years that he had hunted there and saw human tracks for the first time the week before he was shot. There was no proof that defendant recalled the advice given at a hunting safety class, which he took 20 years prior, to be certain of his target before opening fire. Even if he did, however, he told investigators that he opened fire after hearing what he thought were deer horns rubbing against branches and watched what he thought was a deer but was, in reality, the
In light of a new trial being required on the second-degree assault count alone, defendant‘s remaining claims are academic. For purposes of the retrial, we do briefly comment upon defendant‘s unpreserved challenge to the admission of photographs taken at the scene on the day after the shooting occurred. The photographs were probative in that they documented the scene and, to the extent one of the photographs might have misled the jury as to what defendant was able to see from his vantage point, County Court ameliorated any prejudice through a limiting instruction. Thus, we discern no abuse of discretion in their admission (see People v Wood, 79 NY2d 958, 960 [1992]; People v Thibeault, 73 AD3d 1237, 1243 [2010], lv denied 15 NY3d 810 [2010], cert denied 562 US 1293 [2011]).
McCarthy, J.P., Lynch, Clark and Rumsey, JJ., concur.
ORDERED that the judgment is modified, on the law, by reversing defendant‘s conviction of assault in the second degree under count 1 of the indictment and vacating the sentence imposed thereon; matter remitted to the County Court of Essex County for a new trial on said count; and, as so modified, affirmed.