Appeal from a judgment of the County Court of Columbia County (Nichols, J.), rendered March 21, 2009, upon a verdict convicting defendant of the crimes of gang assault in the first degree and assault in the second degree.
The opinion of the court was delivered by: Spain, J.P.
Calendar Date: March 24, 2011
Before: Spain, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.
Around 1:30 A.M. on February 16, 2008, police received an unknown disturbance call and responded to defendant's apartment in the City of Hudson, Columbia County, where they found Floyd Sanders, the victim, on the rear porch, unconscious and bleeding. There were many people present, all friends, including defendant, codefendants Bruce Smith and Kevin Allen, as well as Smith's wife and others. Testimony at trial established that the Smiths had been at the nearby apartment of the victim and his family when one of the friends produced a handwritten list, allegedly made by the victim, recording names -- including the names of children -- with graphic specifics regarding his molestation or rape of them. The names of Smith's 13-year-old stepdaughter and defendant's eight-year-old daughter were on the list. Smith became very angry, confronted and threatened the victim and punched him in the face several times. Smith and the victim then walked down the street to defendant's apartment, followed by Smith's wife, where she showed defendant and Allen the list. Defendant recognized the victim's handwriting on the list. Defendant's daughter was summoned from her sleep to confirm the molestation, and then the victim was beaten by several people in the group. After police arrived, Smith was arrested. The victim died a week later due to blunt force trauma to the head. Defendant, Smith and Allen were jointly indicted for manslaughter in the first degree and gang assault in the first degree. Defendant's motion for a separate trial was denied, although Allen was later granted a severance and tried separately.*fn1
After a Huntley hearing, County Court denied defendant's and Smith's motions to suppress their oral and written statements to police. At the joint trial of defendant and Smith, the key issues were the victim's physical condition upon arriving at defendant's apartment, i.e., the extent of his injuries inflicted by Smith at the victim's apartment, and who among the group had participated in the beating and contributed to the victim's further injuries at defendant's apartment. Of those present in defendant's apartment during the assault, only Smith's wife and defendant testified. Smith's wife confirmed -- as did the victim's girlfriend -- that Smith had punched the victim several times at the victim's apartment, causing his lip to bleed. The victim, however, was able to walk with Smith to defendant's apartment where an argument erupted among the growing group of friends over the list and who knew about it. She denied observing Smith strike the victim at defendant's apartment. While Allen and Smith were at first in the kitchen arguing, according to Smith's wife, after defendant's daughter confirmed the abuse, some of the group remained in the kitchen, everyone was yelling and cursing and "all hell broke loose."
By all accounts, the scene was chaotic and defendant became hysterical - crying, shaking, yelling and repeatedly vomiting after seeing the list. Allen hit the victim first and then defendant hit the victim. At some point, others arrived and, during the beating, Smith went into the living room with one friend who restrained him as he argued with another friend over the friend's prior knowledge of the list. Smith's wife left the kitchen during the beating and, when she returned, the victim was on the floor covered in blood and Allen was next to him also covered in blood asking for help to bring the victim to the hospital. Defendant testified that when the victim arrived with Smith, the victim's face was visibly swollen and bleeding and she told police she hardly recognized him. She testified that she never hit the victim, was not in the kitchen during the beating and did not observe his beating. When she returned to the kitchen, he was bloody and surrounded by Allen, Smith and two others. She admitted to pouring rum on the victim, briefly considered setting him on fire, but decided against it, and then left the room.
When police arrived and asked who did this to the victim, defendant volunteered, "I f***ing did it, that mother f***er raped my daughter," and again "I did it." Minutes later, defendant told another officer, "I kicked him. I hit him with the f***ing chair." In her written signed statement later that morning, as redacted, defendant admitted she "went crazy" and "kicked and hit" the victim after learning of the abuse. Smith told the responding officer, "I did it, I beat his ass" because the victim was "raping little kids." Smith made several subsequent statements to police explaining that he did it to protect his family. At trial, defendant testified that she falsely confessed because she was hysterical and to protect her friends from trouble, not realizing how seriously the victim had been injured.
Defendant was convicted after a jury trial of gang assault in the first degree, and assault in the second degree as a lesser included offense of manslaughter in the first degree. Smith was convicted of gang assault in the second degree and assault in the second degree. Defendant was thereafter sentenced as a second felony offender to a prison term of 25 years, with five years of postrelease supervision on the gang assault conviction, and to a concurrent five-year prison term on the assault conviction, and she now appeals.
Initially, defendant was indicted for manslaughter in the first degree but convicted of the lesser crime of assault in the second degree (see Penal Law § 120.05 ), and also indicted and convicted of gang assault in the first degree (see Penal Law § 120.07). We agree with defendant's contention that her conviction for assault in the second degree should be reversed and that count dismissed because it is a lesser included offense of gang assault in the first degree, "since it would be impossible for defendant to have committed the latter crime without concomitantly committing, by the very same conduct, the former crime" (People v Alford, 65 AD3d 1392, 1394 , mod 14 NY3d 846 ; see CPL 1.20 ). To be convicted of gang assault in the first degree, the jury had to find that defendant, acting "with intent to cause serious physical injury to another person," caused such injury "aided by two or more other persons actually present" (Penal Law § 120.07). To convict defendant of assault in the second degree as charged, the jury had to conclude that defendant acted "with intent to cause serious physical injury to another person" and caused such injury (Penal Law § 120.05 ). With respect to such inclusory concurrent counts (see CPL 300.30 ), "[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted" (CPL 300.40  [b]; see People v Horton, 46 AD3d 1225, 1227 , lv denied 10 NY3d 766 ). Thus, while not preserved by defendant at trial, modification of the judgment is warranted to the extent of reversing the assault in the second degree conviction and dismissing count 1 of the indictment (see People v Beauharnois, 64 AD3d 996, 999-1000 , lv denied 13 NY3d 834 ).
Defendant also contends that County Court erred in denying the request to charge assault in the second degree as a lesser included offense of gang assault in the first degree, of which she was convicted. Defendant joined the timely request of Smith's counsel to submit this lesser charge (see People v Ryan, 55 AD3d 960, 964  [request for submission of lesser offense is not untimely if made before jury retires for deliberations]), and we find that there was a reasonable view of the evidence to support a finding that defendant committed the lesser offense (assault in the second degree), but not the greater offense (gang assault in the first degree) (see People v Miller, 6 NY3d 295, 301 ; People v Van Norstrand, 85 NY2d 131, 135-136 ). However, under the circumstances here, the general rule is inapplicable requiring reversal of a conviction where a trial court improperly refuses to submit a lesser offense to the jury (see CPL 300.50 ). Notably, defendant was convicted of gang assault in the first degree as charged in the indictment, and the court charged, as the next lesser included offense thereof, gang assault in the second degree, which the jury never reached having convicted defendant of the higher indicted count; the court refused to charge assault in the second degree as a further lesser included offense. In this scenario, "where a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that, . . . the defendant's conviction of the crime alleged in the indictment forecloses a challenge to the court's refusal to charge the remote lesser included offenses" (People v Boettcher, 69 NY2d 174, 180 ; see People v Waugh, 52 AD3d 853, 855 , lv denied 11 NY3d 796 ). Thus, "defendant's conviction of the higher count [gang assault in the first degree] forecloses her challenge to the court's refusal to charge the more remote lesser included offense of [assault in the second degree]" (People v Waugh, 52 AD3d at 855).
Next, we are not persuaded that County Court abused its discretion in denying defendant's pretrial motion and repeated mid-trial motions for severance, as the core of each defense was not in "irreconcilable conflict with the other" and there was not "a significant danger, as both defenses [were] portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt" (People v Mahboubian, 74 NY2d 174, 184 ; see CPL 200.40 ; People v Cardwell, 78 NY2d 996, 997-998 ). At trial, defendant denied participating in or witnessing the beating and she did not implicate Smith in the beating at her apartment, although she said that the victim arrived at her apartment already injured. Defendant repudiated her own inculpatory statements to police,*fn2 but corroborated the testimony of Smith's wife that Smith was restrained by friends in the living room at some point during the beating. Smith's defense was likewise that he did not participate in the beatings at defendant's apartment and that he had not seriously injured the victim earlier when the list was first produced, before arriving at defendant's apartment. Smith did not testify or call any witnesses, his statements to police did not implicate defendant, and his cross-examination of the People's witnesses and opening and closing remarks focused on his own lack of involvement in the beating. Smith's wife, called by the People, testified that she saw defendant strike the victim once but Smith never hit the victim.
Defendant's and Smith's defenses were not in irreconcilable conflict or mutually exclusive, as the jury could have acquitted both, finding that neither had participated in the beating or caused the victim's serious injuries. Defendant and Smith were charged with acting in concert for the same crimes, and the proof against them was supplied by their own incriminating statements and essentially the same evidence and, thus, there was a strong public policy favoring joinder of their trials (see People v Thompson, 79 AD3d 1269, 1271-1272 ). While Smith's counsel extensively cross-examined defendant and attempted to impeach her credibility, as was Smith's right (see People v Pinto, 56 AD3d 956, 958 ) and as the prosecutor had already done, we do not find that Smith's counsel acted as a "second prosecutor" (People v Cardwell, 78 NY2d at 998). Smith's counsel was not bound by the court's Sandoval ruling*fn3 (see People v McGee, 68 NY2d 328, 333 ), and we do not find that defendant was unduly prejudiced when Smith's counsel asked her about a conviction for endangering the welfare of a child. The court sustained defendant's objection and defendant was able to explain the circumstances on redirect, minimizing its impact.
Next, we discern no errors in County Court's Huntley ruling, admitting into evidence defendant's statements to, or in the presence of, police officers. The record fully supports the court's determination that defendant's inculpatory statements to the police officers who responded to the scene were noncustodial and were in response to the officers' initial, brief investigatory questions aimed at ascertaining what had just occurred (see People v Steinhilber, 48 AD3d 958, 959 , lv denied 10 NY3d 871 ; People v Brand, 13 AD3d 820, 822 , lv denied 4 NY3d 851 ). Defendant was not isolated, interrogated, handcuffed, arrested, threatened, coerced or prevented from leaving, and she was not entitled to suppression of those statements based upon ...