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People v. Lalonde

Supreme Court of New York, Third Department

April 5, 2018


          Calendar Date: February 16, 2018

          Rural Law Center of New York, Castleton (Cynthia Southard of counsel), for appellant, and appellant pro se.

          Gary M. Pasqua, District Attorney, Canton (Lauren D. Konsul, New York State Prosecutors Training Institute, Albany, of counsel), for respondent.

          Before: McCarthy, J.P., Egan Jr., Devine, Clark and Rumsey, JJ.


          Egan Jr., J.

         Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 8, 2013, upon a verdict convicting defendant of the crimes of robbery in the first degree and murder in the second degree, and (2) by permission, from an order of said court (Champagne, J.), entered November 21, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

         On the evening of November 18, 2010, 83-year-old Russell Lawton (hereinafter the victim) and his 67-year-old roommate, Guy Bartlett, were eating pizza in the kitchen of their shared second-floor apartment at 930 Ford Street in the City of Ogdensburg, St. Lawrence County, when three individuals wearing masks, dark clothes and gloves entered their residence and demanded that the victim turn over his money. While attempting to empty the victim's pockets, one of the intruders tipped over the chair in which the victim was sitting, knocking him to the floor. Bartlett then scuffled with one of the intruders while attempting to grab hold of a wooden "stick" that the intruders had brought with them and he was also knocked to the ground. Two of the intruders then picked Bartlett up, threw him on top of the victim and then left the apartment. Bartlett then checked the victim's pulse and, not finding one, called 911. The victim was subsequently administered CPR and thereafter brought to the hospital where he was pronounced dead a short time later.

         In June 2012, defendant and two codefendants were charged by indictment with robbery in the first degree and murder in the second degree. Following a joint trial, defendant was convicted as charged; his two codefendants were acquitted. County Court (Richards, J.) thereafter sentenced defendant to an aggregate prison term of 22 years to life. Defendant's subsequent CPL article 440 motion seeking to vacate the judgment of conviction was denied without a hearing. Defendant now appeals from the judgment of conviction and, by permission, from the denial of his motion to vacate.

         Defendant initially contends that his convictions for robbery in the first degree and murder in the second degree are against the weight of the evidence. As relevant here, "[a] person is guilty of robbery in the first degree when he [or she] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or [she]... [c]auses serious physical injury to any person who is not a participant in the crime" (Penal Law § 160.15 [1]). A person is guilty of murder in the second degree based upon a felony murder theory "when he [or she] commits or attempts to commit robbery... and, in the course of and in furtherance of such crime or of immediate flight therefrom, he [or she]... causes the death of another person" (Penal Law § 125.25 [3]; see People v Davis, 28 N.Y.3d 294, 300 [2016]; People v Chaplin, 134 A.D.3d 1148, 1151 [2015], lv denied 27 N.Y.3d 1067');">27 N.Y.3d 1067 [2016]).

         With respect to the robbery charge, contrary to defendant's contention, there was ample evidence presented at trial establishing defendant's presence at and participation in the subject robbery. The People presented evidence establishing that, on the day in question, three men entered the victim's apartment wearing black masks and gloves and forcibly stole, among other things, two wallets from the victim. The People elicited testimony from numerous witnesses that, earlier that same day, defendant participated in the planning of the robbery while at his brother's house and independently attempted to recruit two other individuals to participate in same. Victor Gardner, defendant's friend, testified that he was present with defendant at defendant's brother's house when the robbery was being planned. While there, Gardner observed defendant leave the house with Samantha Mashaw; defendant was carrying black Halloween masks, and both he and Mashaw left in Mashaw's vehicle. Gardner testified that, a short time later, defendant's brother became concerned that defendant had not yet returned so they went to look for him, whereupon Gardner observed Mashaw's vehicle parked along Denny Street, near an adjacent alley that led to the victim's apartment. Mashaw testified that, on the day in question, she drove defendant and two other individuals to a location along Denny Street and parked along the side of the street; all three individuals got out of the vehicle, ran around the side of a nearby building and disappeared, returning a few minutes later. Gardner testified that a short time after observing Mashaw's vehicle, defendant's brother received a telephone call, and they subsequently picked up defendant and two other individuals at a nearby residence. After dropping off the two other individuals, defendant, his brother and Gardner drove to the middle of Black Bridge on State Route 37 in Ogdensburg, whereupon defendant exited the vehicle and threw a hat, two wallets and one glove over the side of the bridge into the river below.

         Detective Sergeant Robert Wescott testified that, during the subsequent investigation of the robbery, a black glove was discovered on a chair in the dining room of the victim's apartment. Bartlett testified that it was the intruder that was going through the victim's pockets who removed his glove and left it behind. Deputy Sheriff Andrew Ashley, a K-9 officer with the St. Lawrence County Sheriff's Office, testified that his K-9 dog used the glove to gain a scent and proceeded to track the scent down the stairwell of the victim's apartment and around the back of the apartment building to a location along Denny Street. Wescott testified that the following day he and another officer retraced the path that the K-9 dog had tracked the night before. Wescott indicated that, upon reaching Denny Street, they discovered a small wooden axe handle in a grassy area between the sidewalk and the street. A DNA test was subsequently performed on, among other things, the glove and the axe handle. The DNA test of the glove revealed a mixture profile of DNA on the inside thereof. The forensic scientist who performed the DNA test testified that defendant could not be excluded as a possible contributor to the DNA profile found in the glove [1]. She further opined that the probability of an individual being randomly included in the subject DNA mixture was approximately 1 in 51.23 million. The forensic scientist also indicated that she collected a hair from the handle of the axe. A subsequent DNA test revealed that the hair belonged to Bartlett.

         Westcott also testified that he participated in two separate interviews of defendant. Although defendant initially denied ever having been inside the victim's apartment, he later offered several contradictory explanations for how his DNA might have been present therein [2]. Defendant also initially denied ever having planned a robbery at the victim's apartment; however, he later indicated that he had participated in planning the robbery the day prior to the incident and that he thereafter attempted to get a third party to commit same instead of himself. The People also elicited testimony from Shawn McGregor, an inmate, who indicated that he spoke with defendant about the robbery while defendant was incarcerated pending trial. McGregor testified that defendant admitted his participation in the robbery, including the fact that he was concerned that he had left a glove behind at the scene that might contain his DNA. Wescott, meanwhile, testified that no information regarding the glove or DNA was ever released to the public during the course of this investigation. Based on the foregoing, we find that the evidence established defendant's participation in the robbery (see People v Griffin, 122 A.D.3d 1068, 1069-1070 [2014], lv denied 25 N.Y.3d 1164');">25 N.Y.3d 1164 [2015]; People v Dearmas, 48 A.D.3d 1226, 1228 [2008], lv denied 10 N.Y.3d 839');">10 N.Y.3d 839 [2008]).

         We likewise find unavailing defendant's contention that the People failed to prove that the victim suffered a serious physical injury (see Penal Law § 160.15 [1]) or, relatedly, that the victim's death was not directly caused by the conduct of the three intruders during the course of the robbery (see Penal Law § 125.25 [3]). Serious physical injury is defined as a "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (Penal Law § 10.00 [10]). Further, in order for defendant to be found criminally liable for the victim's death based on a felony murder theory, "defendant's actions must have been an actual contributory cause of death, in the sense that [he] 'forged a link in the chain of causes which actually brought about the death'" (Matter of Anthony M., 63 N.Y.2d 270, 280 [1984], quoting People v Stewart, 40 N.Y.2d 692, 697 [1976]) and that the fatal result was reasonably foreseeable (see People v Davis, 28 N.Y.3d at 300; People v Hernandez, 82 N.Y.2d 309, 314 [1993]; see also People v Matos, 83 N.Y.2d 509, 511 [1994]). Moreover, as long as the "necessary causative link is established, other causes, such as a victim's preexisting condition, will not relieve the defendant of responsibility for homicide" (Matter of Anthony M., 63 N.Y.2d at 280; accord People v Davis, 28 N.Y.3d at 300; see People v Snow, 79 A.D.3d 1252, 1253-1254 [2010], lv denied 16 N.Y.3d 800');">16 N.Y.3d 800 [2011]).

         The evidence established that, after entering the victim's apartment and demanding that he turn over his money, one of the intruders flipped over the victim's chair, knocking him to the floor. Bartlett was also knocked out of his chair onto the floor, and two of the intruders thereafter threw him on top of the victim. Samuel Livingstone, a coroner's physician, testified that he performed an autopsy on the victim. Livingstone opined that the victim's death was the result of an internal hemorrhage caused by a ruptured aortic aneurysm that effectively caused the victim to bleed to death. Livingstone opined that, although the victim's aneurysm had been present for years, the victim's blood pressure was elevated as a result of the intruders' unexpected and unannounced entry into the apartment, and the aortic aneurysm ruptured due to the blunt force trauma that ...

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