Opinion
623 KA 19-01367
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Juan COLON, Defendant-Appellant.
JESSICA KULPIT, BUFFALO, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
JESSICA KULPIT, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20 [1] ). Contrary to defendant's contention, County Court did not err in denying defendant's request to charge the jury on manslaughter in the second degree (§ 125.15 [1]). Although manslaughter in the second degree is a lesser included offense of murder in the second degree (§ 125.25 [1]), i.e., the charge for which defendant was originally indicted (see CPL 1.20 [37] ; People v. Rivera , 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ; People v. Alvaradoajcuc , 142 A.D.3d 1094, 1094, 37 N.Y.S.3d 589 [2d Dept. 2016], lv denied 28 N.Y.3d 1122, 51 N.Y.S.3d 19, 73 N.E.3d 359 [2016] ; see generally People v. Benson , 265 A.D.2d 814, 815, 697 N.Y.S.2d 222 [4th Dept. 1999], lv denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097 [1999], cert denied 529 U.S. 1076, 120 S.Ct. 1694, 146 L.Ed.2d 499 [2000] ), there is no reasonable view of the evidence that would support the idea that defendant's conduct in firing seven rounds into a vehicle at close range was reckless and did not evidence an intent to kill or to cause serious physical injury (see generally People v. Glover , 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ). Three of the bullets struck the victim, killing him almost instantly, while the other bullets struck the victim's vehicle in close proximity to where the victim was sitting.
Generally, where a defendant fires multiple shots at a victim from close range, there is no reasonable view of the evidence that the defendant's conduct was unintentional (see e.g. People v. Bailey , 181 A.D.3d 1172, 1174, 118 N.Y.S.3d 351 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 21, 149 N.E.3d 859 [2020] ; People v. Ware , 303 A.D.2d 173, 174, 760 N.Y.S.2d 1 [1st Dept. 2003], lv denied 100 N.Y.2d 543, 763 N.Y.S.2d 9, 793 N.E.2d 423 [2003] ). Here, however, defendant contends that, inasmuch as shots were fired from one moving vehicle into another moving vehicle, there is a reasonable view of the evidence that would support the determination that his acts were reckless. We reject that contention. The testimony and other evidence established that defendant saw the victim's vehicle traveling on a roadway, sped up and strategically positioned his vehicle next to the victim's moving vehicle, matched his vehicle's speed to the speed of the victim's vehicle, rolled down his passenger window and, from close range, fired up to seven times at the victim (see e.g. Bailey , 181 A.D.3d at 1174, 118 N.Y.S.3d 351 ; People v. Stanford , 87 A.D.3d 1367, 1368, 930 N.Y.S.2d 149 [4th Dept. 2011], lv denied 18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133 [2012] ; People v. Seeler , 63 A.D.3d 1595, 1596, 880 N.Y.S.2d 425 [4th Dept. 2009], lv denied 13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009] ; cf. People v. Quick , 187 A.D.3d 1612, 1612-1613, 132 N.Y.S.3d 219 [4th Dept. 2020], lv denied 36 N.Y.3d 1053, 140 N.Y.S.3d 892, 164 N.E.3d 979 [2021] ). In our view, those actions evidence an intent to kill or seriously injure the victim and not, as defendant suggests, an intent to merely scare him.
We reject defendant's further contention that the court erred in denying his motion for a mistrial after a prosecution witness provided Molineux testimony that had not been the subject of any pretrial notices or hearings. "[T]he decision [whether] to grant or deny a motion for a mistrial is within the trial court's discretion" ( People v. Ortiz , 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 [1981] ; see People v. Brooks , 214 A.D.3d 1425, 1426, 186 N.Y.S.3d 475 [4th Dept. 2023], lv denied 39 N.Y.3d 1153, 190 N.Y.S.3d 708, 211 N.E.3d 1161 [2023] ; People v. McGee , 194 A.D.3d 1454, 1455, 146 N.Y.S.3d 715 [4th Dept. 2021], lv denied 37 N.Y.3d 973, 150 N.Y.S.3d 697, 172 N.E.3d 809 [2021] ). Here, we conclude that "the court did not abuse its discretion in denying defendant's motion for a mistrial and instead sustaining defendant's objection to the improper testimony, striking it from the record, and providing the jury with a curative instruction directing them to disregard the improper testimony, which the jury is presumed to have followed" ( Brooks , 214 A.D.3d at 1426, 186 N.Y.S.3d 475 [internal quotation marks omitted]; see McGee , 194 A.D.3d at 1455, 146 N.Y.S.3d 715 ).
Finally, we conclude that the evidence, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction of manslaughter in the first degree (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).