Opinion
29 KA 16-02194
02-04-2022
The PEOPLE of the State of New York, Respondent, v. Tony L. YOUNGBLOOD, Jr., Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT. TONY L. YOUNGBLOOD, JR., DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
TONY L. YOUNGBLOOD, JR., DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences imposed for attempted aggravated murder under counts one through three of the indictment shall run concurrently with respect to each other, and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of three counts of attempted aggravated murder ( Penal Law §§ 110.00, 125.26 [1] [a] [i] ; [b]) and one count of unlawful imprisonment in the first degree (§ 135.10). Defendant's conviction stems from his conduct in firing a shotgun at police officers while inside his girlfriend's home and not allowing the girlfriend's daughter to leave the home. We reject defendant's contention in his pro se supplemental brief that the evidence is legally insufficient. Viewing the evidence 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] ), we conclude that the evidence is legally sufficient to establish that defendant, with the intent to cause the deaths of police officers engaged in the course of performing their official duties, engaged in conduct that tended to effect the commission of those crimes, and that defendant knew or reasonably should have known that they were police officers (see §§ 110.00, 125.26 [1] [a] [i] ; see generally People v. Badger , 90 A.D.3d 1531, 1532-1533, 935 N.Y.S.2d 416 [4th Dept. 2011], lv denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002 [2012] ). The testimony of the three officers and other evidence established that the officers announced their presence before entering the home, whereupon defendant fired a shotgun in the direction of one officer who was inside the house and then fired the shotgun from upstairs at two officers who were standing outside. Defendant's intent to kill the police officers can be reasonably inferred from his conduct (see People v. Rouse , 34 N.Y.3d 269, 274-275, 117 N.Y.S.3d 634, 140 N.E.3d 957 [2019] ; People v. Milbank , 187 A.D.2d 459, 460, 589 N.Y.S.2d 901 [2d Dept. 1992] ). In addition, the evidence is also legally sufficient to establish that the girlfriend's daughter was unlawfully imprisoned. Contrary to defendant's contention in his main brief, viewing the evidence in light of the elements of the crime of attempted aggravated murder 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 with respect to those crimes is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's contention in his main brief that he was denied effective assistance of counsel. Defendant failed to establish the absence of a strategic or other legitimate explanation for defense counsel's failure to request a lesser included offense (see People v. Spencer , 183 A.D.3d 1258, 1259-1260, 123 N.Y.S.3d 369 [4th Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 380, 152 N.E.3d 1181 [2020] ; People v. Collins , 167 A.D.3d 1493, 1498, 90 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 191, 122 N.E.3d 1104 [2019] ; see generally People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ) and failure to request a missing witness instruction with respect to defendant's girlfriend (see People v. Shepard , 171 A.D.3d 951, 952, 98 N.Y.S.3d 300 [2d Dept. 2019] ; People v. Myers , 87 A.D.3d 826, 828, 928 N.Y.S.2d 407 [4th Dept. 2011], lv denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ).
We agree with defendant's contention in his main brief that the sentence is unduly harsh and severe. Although defendant's crimes were undoubtedly serious and could easily have resulted in death or injury to the officers, no one was injured or killed during the shootout. We conclude that the de facto life sentence without parole is not warranted here. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the sentences on the counts of attempted aggravated murder shall run concurrently with each other (see generally CPL 470.15 [6] [b] ; People v. Delgado , 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992] ).