Defendant appeals from the judgment of the Supreme Court, New York County (Edwin Torres, J.), rendered February 27, 2007, convicting him, after a jury trial, of attempted assault in the first degree, criminal possession of a weapon in the second degree and assault in the second degree, and imposing sentence.
The opinion of the court was delivered by: Saxe, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David B. Saxe, J.P., James M. Catterson, James M. McGuire, Karla Moskowitz Rolando T. Acosta, JJ.
The trial court in this matter correctly instructed the jury as to its task of deciding whether defendant harbored the requisite intent to be convicted of attempted assault in the first degree. We find that when the charge is considered as a whole, the court's supplemental instruction, responding to the request for clarification of whether intent can be formed on the spur of the moment, would not have led the jury to believe that the court was taking the question out of the jury's hands and simply informing it that such intent had been established. We therefore reject defendant's contention that the trial court committed prejudicial error by improperly directing a finding of intent, and we affirm the conviction.
The four-count indictment charged defendant with attempted murder in the second degree, attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, arising out of an altercation between defendant and another young man in which the complainant was ultimately shot. At trial, during the course of its deliberations, the jury sent the court the following note with regard to the element of intent for the charge of attempted assault in the first degree: "We need further clarification on Count #2, i.e., Does a spur of the moment action constitute intent? Please define intent. Did the accused have to come to the fight with the intent to shoot for there to be attempted assault in the 1st degree?" Although defense counsel requested that the court simply define intent again and not answer either of the jury's questions except to say "it all depends on the circumstances," the court rejected defense counsel's challenge to its proposed response and determined both to provide an expanded charge on intent and to answer the jury's first question by saying "yes . . . depending on the circumstances," and the second question "no."
The court responded to the jury's note asking, "Does a spur of the moment action constitute intent?" with the following supplemental instruction to the jury: "First off I'm going to give you the longer version of what constitutes intent and that may very well answer these questions. [¶] [The] [c]rimes with which the defendant is being charged are crimes which require intent. Intent is defined by the penal law of this state as the situation that exists when a person has a conscious objective to cause the act with which he is charged. [¶] The burden is on the People to prove the intent of the defendant beyond a reasonable doubt. If you find from the evidence that the defendant did not have a conscious objective to bring about the violation of law you must find the defendant not guilty of this crime. Intent[,] then[,] is a mental operation that can be determined[,] usually only by an examination of all the facts and circumstances surrounding the commission of a crime and the events leading up to, including and following it."Now, science has not yet reached the stage where a man's mind can be x-rayed in order to disclose what thoughts are running through his mind. Intent is the secret and silent operation of the mind[,] and its formation can be instantaneous or drawn out . . . [¶] So, [intent's] only visible physical manifestation is an accomplishment or intended accomplishment of the thing decided upon[,] and since intent is, as pointed out, a mental operation[,] it is not always easy to establish. It depends upon the peculiar circumstances of the case, upon the man's spoken words, his actions, and sometimes upon a combination of both."Now, going directly into your question does a spur of the moment action constitute intent, in this context I would say yes[,] [d]epending on the peculiar circumstances of the situation. In this instance my answer is yes."Perhaps I can throw in an analog, example removed from this particular pattern. Suppose two guys bump one another on the street, one guy says ["]screw you["] to the other guy and this guy pulls out a pistol and shoots him. That intent in that instance was formulated almost instantaneously, spur of the moment. Again[,] that's an example. Here the answer is yes to that question. Could be drawn out, could be instantaneous." The trial court then turned to the second part of the question, which had merely phrased the same question a different way: " Did the accused have to come to the fight with the intent to shoot for there to be attempted assault in the first degree?' The answer to this is no. The defendant could have arrived at the scene to either confront or talk and then formulated the intent to shoot. So, the answer to question one is yes and the answer to question two is no." Defense counsel took exception, asserting that "answering the question and giving the example . . . was just too close to the factual pattern here."
Initially, we observe that whatever questions are raised as to the phrasing of the court's response to the jury's questions, the court's answer provided the requisite "meaningful response" (see People v Kisoon, 8 NY3d 129, 134 ), which distinguishes this case from the recent Court of Appeals decision in People v Aleman (12 NY3d 806 ), in which a conviction was reversed due to the trial judge's failure to respond to the portion of a jury note stating that the jury was hopelessly deadlocked.
Turning to defendant's claim of prejudicial error, we must keep in mind that in reviewing the adequacy of a trial court's instructions, the challenged portions of the charge should not be examined in a vacuum, but must be assessed in the context of the jury instructions in their entirety. An instruction "may be sufficient, indeed substantially correct, even though it contains phrases which, isolated from their context, seem erroneous. The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at [a] decision" (People v Drake, 7 NY3d 28, 33-34  [internal quotation marks & citations omitted]; see also People v Fields, 87 NY2d 821, 823 ; People v Coleman, 70 NY2d 817 ).
In many cases, trial courts have misspoken as to an essential focus of the defense, and yet it has repeatedly been found that these charges, viewed in their entirety, conveyed the correct standards to the jury. For instance, in People v Drake (supra), in which the central issue was whether eyewitness identifications of the defendant were accurate, the trial court erroneously charged the jury that it should not use the testimony of the eyewitness reliability expert "to discredit or accredit the reliability of eyewitness testimony in general, or in this case" (7 NY3d at 32). The error did not require reversal, however, since the remainder of the charge correctly instructed that the expert's testimony was offered to provide the jury with factors that studies had shown to be relevant to assessing a person's ability to perceive and remember (id. at 34).
In People v Fields (supra), the trial judge, having provided instruction regarding the presumption of innocence, the burden of proof and the definition of reasonable doubt, then said, "If the evidence in the case reasonably permits a conclusion of either guilt or innocence, you should adopt a conclusion of innocence" (87 NY2d at 822). The Court of Appeals explained that this instruction was improper because a juror might interpret it to authorize a guilty verdict even if guilt was not established beyond a reasonable doubt, but concluded that the charge as a whole sufficiently conveyed the correct standard (id. at 823). It rejected the dissenter's view that "[s]ince the offending instruction came at the end of the reasonable doubt charge, there is a very real danger that the jurors regarded it as the last word' and the most definitive explanation of the concept" (id. at 825).
And, in People v Umali (10 NY3d 417 , cert denied __ US __, 129 S Ct 1595 ), after the trial court correctly instructed the jury that it was the People's burden to disprove the justification defense beyond a reasonable doubt, it proceeded to explain the objective and subjective standards by which the defense could be disproved. Regarding the subjective test, the court incorrectly instructed: "If the evidence convinces you beyond a reasonable doubt that deadly physical force was necessary to prevent the imminent use --- that the defendant believed that deadly physical force was necessary to prevent the imminent use of deadly physical force you still must find the second test, which is the objective test, were defendant's beliefs reasonable under an objective standard" (10 NY3d at 426). This portion of the charge, the Court of Appeals observed, was erroneous because it instructed the jury to consider whether it was proved beyond a reasonable doubt that the defendant believed deadly force was necessary, rather than whether it was proved beyond a reasonable doubt that the defendant did not believe deadly force was necessary. This inversion of the inquiry might lead the jury to consider whether the defendant had proved that he had believed deadly physical force to be necessary, instead of whether the People had proved that he did not believe it. However, the Court found that the remainder of the charge properly instructed the jury that it was always the People's burden to disprove justification, and that the charge as a whole could not have misled the jury (id. at 427-428).
In the matter before us, the trial judge fully and properly instructed the jury from the outset in its preliminary instructions, as well as throughout the charge, that the jurors were the sole and exclusive judges of the facts of the case and that the element of intent was one of those facts. Furthermore, the court's charge clearly explained that it was the jury's evaluation of the evidence that controlled, "irrespective of what the attorneys on either side of the case may say regarding the facts and of course regardless of anything I may say to you during the course of this charge regarding the facts."
We are also cognizant that a reading of the judge's words in the trial transcript may be subtly different from what the jury hears. In a transcript, we are unable to discern such elements as the court's emphasis, and, indeed, even small changes in punctuation may alter the exact sense of the words as they were conveyed to the jury. For instance, in the transcript, the first part of the challenged language is divided into separate sentences: "[i]n this context I would say yes. Depending on the peculiar circumstances of the situation." Reading these words divided into separate sentences in this way could create the impression that the words "I would say yes" were intended as definitive rather than conditional. Had the transcriber used a comma instead of a period before the words "depending on the circumstances," the transcript would have more accurately conveyed the point the court was trying to make to the jury, that, yes, intent may be found to have been formed at the spur of the moment, depending on the circumstances. The court was not flatly saying "Yes" in answer to the jury's inartfully phrased question, "Does a spur of the moment action constitute intent?" It was saying, "yes, depending on the circumstances," thereby leaving it in the jury's hands to consider the circumstances and decide whether the requisite intent had been formed.
Of course, as we examine that portion of the transcript, the court's appropriately conditional response that a spur of the moment action may "constitute intent," "depending on the circumstances," seems to be immediately undercut by the coda, "In this instance my answer is yes." These seven words present the nub of the difficulty, since, to the extent they are viewed in a vacuum, removed from the context of the instructions as a whole, these words seem to convey the sense that the court has made its own definitive determination that "in this instance" the defendant's spur of the moment action did, absolutely, "constitute intent."
But trial judges, like everyone else, may on occasion employ inartful phrasings, "which, isolated from their context, seem erroneous" (People v Drake, 7 NY3d at 33 [internal quotation marks & citation omitted]). It is for this reason that we are ...