People v. Danielson , 832 N.Y.S.2d 546 ( 2007 )

OPINION OF THE COURT

Gonzalez, J.

On this appeal, defendant asks us to reverse his conviction of depraved indifference murder on the grounds that the trial evidence was legally insufficient to support such conviction, or, alternatively, because the jury’s verdict was against the weight of the evidence. We reject both arguments because defendant failed to preserve his legal sufficiency claim and his weight of the evidence argument fails to demonstrate that the jury’s credibility determinations were in error. Moreover, in a criminal case such as this, where a defendant’s argument for appellate reversal rests on the unseemly assertion that he is entitled to relief because he intentionally murdered the victim, rather than having recklessly caused his death, no plausible argument can be made that review of defendant’s claim is in the interests of justice. Accordingly, defendant’s conviction of depraved indifference murder should be affirmed.

The facts underlying defendant’s conviction and the conduct of the trial proceedings are accurately summarized by the dissent. The prosecution’s evidence showed that defendant and two accomplices, all members of a gang known as the Bloods, executed a plan to kill the victim based on his offense of wearing the colors of a rival gang, also known as “false flagging.” Witnesses testified that defendant was one of three shooters, and that the deceased victim was struck by 11 shots, at least two of which, striking the victim in the back of the head and abdomen, were potentially fatal.

Initially, we agree with the dissent that defendant’s legal sufficiency claim is unpreserved. Defendant’s motion for a trial order of dismissal was predicated exclusively on the lack of credible evidence that he was present at the murder scene. There was no mention of the argument he now raises on appeal, namely, that the trial evidence supported only a theory of intentional murder, not a reckless one committed under circumstances evincing a depraved indifference to human life. Because defendant’s dismissal motion was not specifically directed at the alleged insufficiency that he now raises on appeal (People v Gray, 86 NY2d 10 [1995]), the claim is unpreserved as a matter of law (People v Lisojo, 27 AD3d 215 [2006], affd 7 NY3d 873 [2006]), and we decline to review it in the interests of justice.

With respect to defendant’s weight of the evidence claim, a discrete analysis is required (People v Bleakley, 69 NY2d 490, 495 [1987]). Weight of the evidence review is mandated by statute if requested by an appealing defendant (CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 493 [1987]). It requires the appellate court to “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences” in order to determine if “the trier of fact has failed to give the evidence the weight it should be accorded” (id. at 495 [internal quotation marks and citations omitted]). And, most importantly, “the Appellate Division is constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant” (People v Noble, 86 NY2d 814, 815 [1995]; see also People v Cooper, 88 NY2d 1056, 1058 [1996]).

At the outset, there are two distinct weight of the evidence arguments made on this appeal—one by the defendant and one by the dissent—and only the former is properly before this Court. Typically, a criminal defendant’s appellate claim that a verdict is against the weight of the evidence has focused on the quality or reliability of the factual proof that led to the defendant’s conviction (see Bleakley, 69 NY2d at 495). It is designed to afford an intermediate appellate court an opportunity to “form a conclusion as to the facts” and to determine whether “the evidence is of such weight and credibility as to convince [the court] that the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v Crum, 272 NY 348, 350 [1936]).

Consistent with this understanding of the role of weight of the evidence review, defendant in this case argues that the verdict must be set aside because the testimony of prosecution witnesses Green and Matthews was “incredible” and “unworthy of belief.” Defendant’s brief offers numerous reasons for discrediting their testimony, such as their obvious motive to shift blame from themselves, their criminal or psychiatric histories, the fact that they were testifying pursuant to cooperation agreements and the fact that their testimony was riddled with inconsistencies. Thus, the arguments raised by defendant reflect a traditional notion of a weight of the evidence inquiry— i.e., one which asks the court to evaluate the weight of the witnesses’ testimony and the permissible inferences to be drawn therefrom in order to determine the facts of the case (see People v Cahill, 2 NY3d 14, 57 [2003]).

While these arguments are certainly appropriate for purposes of weight of the evidence review, they are not persuasive. None of the alleged flaws in the prosecution witnesses’ testimony are sufficient to overcome the deference that is customarily shown to jury determinations of credibility (see People v Hernandez, 291 AD2d 263 [2002], lv denied 98 NY2d 697 [2002]). The jury in this case fairly could have concluded that the inconsistencies in the witnesses’ testimony regarding the shooting were the product of naturally differing perceptions of a startling and stressful event (see People v Romero, 7 NY3d 633 [2006]).

With respect to the dissent’s different weight of the evidence analysis, we note that it does not address a single point raised by defendant in his brief regarding the lack of credibility of the prosecution’s two main witnesses—which, again, is defendant’s exclusive basis for asserting that the verdict is against the weight of the evidence. In fact, the dissent does not comment on the “weight,” quality or persuasiveness of the witnesses’ testimony in any respect. Instead, it focuses exclusively on the issue of whether the proof satisfied the elements of recklessness and depraved indifference, and, conversely, whether the evidence of defendant’s intentional conduct negates either of these two elements. The problem with this analysis is that defendant never raised this argument in his brief with respect to his weight of the evidence claim. Thus, the dissent essentially ignores the defendant’s weight of the evidence argument and substitutes its own. In my view, it would be highly inadvisable for this Court to decide a weight of the evidence claim based on a theory never raised by defendant. Accordingly, I would find that the weight of the evidence claim sua sponte raised by the dissent is not properly before this Court.

Even if the dissent’s analysis were properly before us, I would reject the claim on the merits. The dissent concludes that the conviction for depraved indifference murder was against the weight of the evidence because “[t]here is simply no view of the trial record which could support the objective conclusion that defendant’s ‘homicidal level of mental culpability’ was recklessness” because “[t]his was a calculated murder.” Significantly, the dissent volunteers that this determination is “not based upon the Court of Appeals’ reformulation of its view of ‘depraved indifference,’ as articulated in People v Feingold (7 NY3d 288, 294 [2006]),” but rather is premised on “the permissible inferences to be drawn from the trial evidence as viewed against the elements of depraved indifference murder as charged to the jury in 2001, when this trial took place.”

Notwithstanding the above disclaimer, the dissent has indeed weighed the evidence in light of the current interpretation of the depraved indifference murder statute (see People v Feingold, supra; People v Suarez, 6 NY3d 202 [2005]), instead of the elements of that crime as charged to the jury and interpreted by the Court of Appeals in 2001. In 2001, the governing precedent concerning the elements of depraved' indifference murder was People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984], overruled by People v Feingold, supra). In Register (supra at 277), the Court of Appeals held that recklessness is the mens rea for depraved indifference murder and that “the focus of the offense is not upon the subjective intent of the defendant, as it is with intentional murder, but rather upon an objective assessment of the degree of risk presented by defendant’s reckless conduct” (citations omitted).

More to the point, however, is that under Register, strong proof of intent to kill did not foreclose the jury from finding recklessness or depraved indifference (see Policano v Herbert, 7 NY3d 588, 600 [2006]). The thinking at the time was that even where compelling circumstantial evidence of intent to kill existed, the question of the defendant’s state of mind is a classic jury question (id. at 599, citing People v Flack, 125 NY 324, 334 [1891] [even with strong proof of criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to jury]; People v Gallagher, 69 NY2d 525, 530 [1987] [“(i)t is not for the (court) in the first instance to determine whether defendant acted intentionally or recklessly at the time of the crime”]).

In addition, under Register the element of “circumstances evincing a depraved indifference to human life” was almost invariably met if a defendant’s actions “created an almost certain risk of death by, for example, shooting the victim in the head multiple times at close range” (Policano, 7 NY3d at 600; see also People v Sanchez, 98 NY2d 373, 378 [2002] [shooting into victim’s torso at point-blank range presented such a transcendent risk of death that it readily met the level of depravity needed for depraved indifference murder]).

Thus, in 2001, at the time of this defendant’s trial, neither strong circumstantial proof of an intent to kill nor the existence of factual circumstances supporting a compelling inference that defendant’s conduct created a risk of death approaching certainty, stood as a bar to a jury’s conviction of depraved indifference murder. As noted in Policano (7 NY3d at 601), “[t]his was the law of the State of New York” at that time.

Accordingly, because this Court is constrained to weigh the evidence in light of the elements of depraved indifference murder as charged without objection by defendant (People v Noble, 86 NY2d at 815), and in light of how those elements were understood and judicially interpreted in 2001, we find that the verdict was not against the weight of the evidence. One trial witness testified that defendant was the first to fire eight shots at the victim, followed by four or five more shots from his accomplices. Another witness testified that defendant was not the first to fire, but that he fired the second round of shots as the victim was falling. There was also testimony from one of the accomplices that defendant was a party to the agreement to kill the victim as a penalty for “false flagging.” Although this evidence certainly raises a strong inference that defendant acted with intent to kill, under the Register formulation that question was exclusively for the jury.

It should also be noted that there was no specific evidence as to whether any of the shots fired by defendant struck the victim or, if they did, where they entered the victim’s body. Additionally, several of the shots either grazed the victim or were not in locations that would necessarily result in fatal injury. Thus, consistent with the court’s depraved indifference instructions to the jury (outlined in the dissent’s opinion), to which defendant raised no objection, this jury fairly could have concluded that defendant recklessly shot at the victim under circumstances evincing a depraved indifference to human life (Policano, 7 NY3d at 601-602).

Finally, we are compelled to note that the dissent’s holding would seriously undermine the long-standing doctrine of preservation of error in criminal cases (CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995], supra). The dissent concedes that defendant’s legal insufficiency claim is unpreserved for appellate review and that interest of justice review is inappropriate. Thus, other than for the purpose of requesting that this Court exercise its interests of justice jurisdiction (CPL 470.15 [6] [a]), defendant’s argument that the elements of “recklessness” and “circumstances evincing a depraved indifference to human life” were not proven, should be beyond the reach of this Court.

Instead, however, the dissent would hold that defendant may bring this element-based claim in the form of a weight of the evidence challenge, since such a challenge is statutorily permitted and may be raised for the first time on appeal (CPL 470.15 [5]). We disagree. The dissent’s weight of the evidence challenge is nothing more than an unpreserved legal sufficiency claim. As noted, the dissent’s analysis does not even discuss the “weight” of evidence, but merely concludes that the totality of evidence fails to establish the element of recklessness.

In our view, weight of evidence review was not intended to be a substitute or backup review for an unpreserved sufficiency claim. Rather, it was intended to function as a second layer of factual review, following a determination that the trial evidence is legally sufficient, i.e., that it satisfies all of the elements of the crimes charged (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004], quoting Cahill, 2 NY3d at 57, quoting Bleakley, 69 NY2d at 495 [“weight of the evidence review recognizes that ‘(e)ven if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further’ ”]; see also Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 470.15, at 530 [“(r)eversals based upon the weight of the evidence occur where the evidence is legally sufficient but the intermediate appellate court disagrees with the jury or trial court’s resolution of conflicting facts”]).

Allowing element-based weight of the evidence challenges would eliminate the preservation rule for legal sufficiency claims. In future cases where the trial evidence was legally insufficient, but the defendant fails to preserve this legal challenge by specifically arguing the alleged deficiency in his or her motion to dismiss, that defendant may obtain the exact same review on appeal by asserting that the verdict was against the weight of the evidence. Thus, any seasoned appellate attorney will always be able to obtain legal sufficiency review notwithstanding trial counsel’s failure to preserve the claim at trial. An interpretation of this State’s rules of appellate procedure that permits our long-standing preservation rule to be so easily circumvented should be avoided. Accordingly, we hold that defendant’s unpreserved element-based argument does not constitute a proper weight of the evidence challenge, as contemplated by CPL 470.15 (5) and People v Bleakley (supra).

Finally, defendant’s motion to suppress a photo identification was properly denied. The suppression court properly determined, after a hearing, that the photo identification was confirmatory on the ground that the identifying witness and the defendant were known to each other (see People v Rodriguez, 79 NY2d 445, 450 [1992]).

Accordingly, the judgment of the Supreme Court, Bronx County (John S. Moore, J.), rendered January 2, 2002, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 20 years to life, should be affirmed.