People v. Harrison ( 1992 )

Judgment, Supreme Court, Bronx County (William H. Wallace, III, J., at suppression hearing; Joseph Fisch, J., at trial and sentence), rendered September 11, 1991, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 8 Vs to 25 years and 5 to 10 years, respectively, affirmed.

Evidence at the hearing and trial was that three plainclothes police officers and two civilians saw defendant chase the victim and, after the victim tripped and fell, saw him fire three or four shots into the victim at point blank range. Within minutes, defendant was apprehended, handcuffed, and placed in the back seat of an unmarked car. As one of the officers frisked defendant in the back seat, but before he was advised of his Miranda rights, defendant calmly asked the officer if he still had his gold chain on. Although the officer saw defendant’s gold chain around his neck, he was so flabbergasted by the defendant’s calm demeanor in asking that question, having just seen defendant shoot the victim to death, that, instead of answering defendant’s question, he asked him, "You’re worried about your gold chain?” The officer then observed defendant become agitated and heard him say, "Hey, fuck that motherfucker * * * he broke my window my car, my auto window * * * he got what he deserved”. The defendant then went to sleep in the back seat of the car.

There is no basis to disturb the suppression court’s finding, which is entitled to great weight (People v Prochilo, 41 NY2d 759), "that defendant’s statement was a spontaneous utterance. There is no credible evidence that the police initiated disguised interrogation during which defendant’s inculpatory statement was elicited, in violation of defendant’s invocation of his right to remain silent [citation omitted].” (People v Romano, 176 AD2d 595, lv denied 79 NY2d 863.)

While we are agreed on the foregoing, there is an issue raised by the partial dissent with respect to the sentencing.

There is no merit to defendant’s argument that, in imposing the maximum sentence for the manslaughter conviction, the court improperly considered defendant a cold-blooded executioner, despite the fact that he had been acquitted of murder. "[I]t is apparent that the sentencing court, uniquely familiar with the particularly heinous circumstances of this case, expressed as a community spokesperson and in profoundly human terms, the perceived extent of public condemnation and social outrage engendered by the criminal act for which defendant was convicted (see, e.g., United States v Bakker, 925 F2d 728). Additionally, there is no evidence of an abuse of discretion by the sentencing court in imposing sentence after due consideration of the circumstances of this case, defendant’s probation report, his prior criminal history, and the comments of the prosecutor, defense counsel and defendant (see, e.g., People v Junco, 43 AD2d 266, affd 35 NY2d 419, cert denied 421 US 951)”. (People v Berrios, 176 AD2d 547, 549, lv denied 79 NY2d 824; see also, People v Bramble, 182 AD2d 590, lv denied 80 NY2d 901.)

Unlike People v Maula (163 AD2d 180), cited in the dissent, where the sentence for conviction of the misdemeanor of criminal possession of a weapon in the fourth degree was enhanced when the trial court considered the death of the victim for which charge the defendant had been acquitted, here the defendant was convicted of the death of the victim, albeit on a different count. That the defendant may arguably have intended only to hurt the victim, does not alter the fact that he did snuff out his life.

Only recently, we disbarred an attorney, citing his failure to pay his New York State and Federal income taxes for some twenty years, even though his conviction for the misdemeanor of failing to file State returns, which led to the disciplinary proceeding, covered only a two year period (Matter of Chervin, 181 AD2d 111, 117).

After full consideration of defense counsel’s presentence memorandum and hearing defense counsel and the defendant argue for mitigation, the court was fully justified in imposing the maximum sentence for the criminal act for which the defendant was actually convicted. Concur — Wallach, Kupferman, Ross and Rubin, JJ.