People v. Lind

Judgments of the Supreme Court, New York County (Francis Pécora, J.), rendered January 16, 1984 and January 23, 1984, convicting defendants Cabassa and Lind, respectively, after trial by jury, of attempted murder in the first degree, three counts of attempted murder in the second degree and two counts of criminal use of a firearm in the first degree, and sentencing defendant Cabassa to three concurrent terms of 8V3 to 25 years for the attempted second degree murder counts and two concurrent terms of 5 to 10 years for the criminal use of a firearm counts and a consecutive term of 25 years to life for the attempted murder in the first degree count, all of the sentences to be consecutive to parole time defendant owed on a prior conviction, and sentencing defendant Lind as a persistent felony offender to three concurrent terms of 25 years to life for the attempted second degree murder convictions and two concurrent terms of 10 years to life on the criminal use of a firearm convictions and a consecutive term of 25 years to life on the attempted first degree murder conviction, are affirmed. Plainclothes Officers Módica, De Vito and Cialone were — 180 — patrolling in Washington Heights in Manhattan in a taxicab when they observed a white Cadillac parked at 167th Street and Amsterdam Avenue with defendant Cabassa at the wheel, defendant Lind sitting in the front passenger seat and one Michael Acobes seated behind Lind. The Cadillac proceeded south on Amsterdam Avenue and the officers made a U-turn and followed it to 158th Street and Edward Morgan Place. Since the auto had inoperable tail lights and its trunk lid was bouncing up and down, the officers, after identifying themselves as police, "instructed the occupants of the car to pull over” but although the order was acknowledged, the Cadillac sped through the intersection and toward the southbound entrance of the Henry Hudson Parkway. As it got onto the parkway, it collided with another vehicle but continued south with the police in the taxi in pursuit. The Cadillac continued at speeds of 60 miles per hour, defendant Lind leaning out the window firing on two occasions at the pursuing police who returned the fire both times. Police Officers Raymond Ruiz and Ronald Connelly, in uniform, had set up their patrol car as a roadblock near 125th Street. Connelly was in front and Ruiz in the rear of the car as the Cadillac approached and Lind opened fire on the waiting police officers. As the Cadillac swerved around the roadblock, an automatic weapon was thrown out from Lind’s window. After leaving the highway at high speed, the chase ended when the Cadillac went out of control and crashed into a parked auto. Hearing a gunshot at the moment of impact, Officers DeVito and Cialone each fired one shot into the Cadillac and defendants were apprehended. On the front floor of the Cadillac a loaded 9mm ammunition clip was removed and a 32 caliber automatic and a 9mm automatic were recovered near 125th Street on the West Side Highway. While the 32 caliber was completely operable, the 9mm automatic was test fired by the ballistic experts only by the use of a screwdriver depressing a mechanism. Both defendants contend on appeal that the People failed to prove beyond a reasonable doubt that they intended to kill any of the police. However, the conclusion reached by the jury that both men possessed the intent to kill the officers when Lind shot at them with Cabassa driving the car, was amply supported by the evidence and was, indeed, the only reasonable view of the People’s evidence. Lind repeatedly fired at the plainclothes officers with an automatic weapon. A bullet mark was left on the police taxi windshield as silent confirmatory evidence that he was aiming at the officers themselves and — 181 — shooting to kill. This intent was dramatically evinced when defendants approached the roadblock with the two waiting uniformed officers. Lind stretched all the way out of the window bracing his arm against the windshield and firing directly at the officers beginning fifteen yards away. Although Cabassa did not himself fire any shots, the evidence that he shared in Lind’s intent to kill was compelling. After the Cadillac was first pulled over, Lind and Cabassa conversed for a few moments and then the car driven by Cabassa sped away. Cabassa continued to drive at "breakneck” speeds even after Lind first fired at the plainclothes officers, then engaged in automotive legerdemain in racing toward the manned roadblocks as Lind fired weaving through the small space left by the police car. Under these circumstances, the jury had ample basis for its rejection of defendant Cabassa’s testimony that no one in the Cadillac fired any shots at the police or even possessed a weapon, and finding that both defendants acted with the intent to kill the police officers. Defendants also raise a subsidiary issue, i.e., Lind asserts that the trial court erred in not submitting attempted assault in the first degree as a lesser included offense of attempted murder and both defendants contend the jury should have been charged on attempted assault in the second degree as a lesser included offense. "To establish entitlement to a lesser included offense charge, the defendant must make two showings. First, it must be shown that the additional offense that he desires to have charged is a 'lesser included offense’, i.e., that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense. That established, the defendant must then show that there is a reasonable view of the evidence in the particular case that would support a finding that he committed the lesser offense but not the greater.” (People v Glover, 57 NY2d 61, 63.) Application of the first prong of this test validates the trial court’s refusal to charge attempted assault in the first degree as a lesser included offense. Such an offense is committed when a person, with intent to cause serious physical injury to another, attempts to cause such injury by means of a deadly weapon or dangerous instrument (Penal Law §§ 110.00, 120.10 [1]). Attempted murder in the second degree, on the other hand, is committed when a person with the intent to cause the death of another, attempts to cause such death (Penal Law — 182 — §§ 110.00, 125.25). Thus, it is theoretically possible to commit attempted murder without, at the same time, committing attempted assault in the first degree, since attempted murder does not have a requirement that defendant use a deadly weapon or dangerous instrument in the attempt. On the other hand, attempted assault in the second degree, i.e., attempting to cause serious physical injury to another with the intent of causing such serious physical injury, is a lesser included offense of attempted murder in the second degree. However, the trial court correctly also did not charge this lesser included offense since here the second prong of the test was not met, i.e., there was no "reasonable” view of the evidence in this particular case that would support a finding that either defendant committed the lesser offense but not the greater. While the dissent finds the trial court’s failure to submit the lesser charge is erroneous, its conclusion that "the jury could have reasonably concluded that if Lind intended to hit any of the officers at all, his objective was to injure, rather than kill them” is simply not borne out by the evidence which the jury had before it. It is true that the jury could find that Lind and Cabassa only wanted to get away from the police and the shots were simply a "scare” tactic by defendants. If this was the jury’s conclusion, however, it had the opportunity to acquit defendants. The dissent, however, postulates a situation where the defendants did not possess the intent to kill the officers, nor the intent to scare them off. Rather, the hypothetical situation set forth is that defendants possessed an intent to seriously injure the police. However, as to this third possible scenario, there was no identifiable basis in the evidence presented by the People, or in Cabassa’s denial that any shots were fired, for any "reasonable” conclusion that defendants intended to seriously injure the police officers as opposed to killing or warning them off. "Intent is a subjective state of mind and is demonstrated by objective evidence. Here the defendant’s intent was demonstrated by his firing his gun at police officers at short range during a chase on a sidewalk where other persons were walking. The trial court, in evaluating the defendant’s conduct, could well determine that the defendant’s intent was to perpetrate death rather than simply serious physical injury. There should be 'objective indications of a defendant’s state of mind to corroborate, in a sense, the defendant’s own subjective articulation’ (People v Strong, 37 NY2d 568, 571-572; see People v Shuman, 37 NY2d 302; People v Discala, 45 NY2d 38, 42-43; People v Goodwin, 64 AD2d 780). Nothing appears in this record to indicate that the — 183 — defendant’s intent was to commit serious physical injury rather than death.” (People v Burke, 73 AD2d 627, 627-628.) The dissent further cites as error the trial court’s grant of defendant Cabassa’s application to proceed pro se during summation, citing People v Kaltenbach (60 NY2d 797) for the proposition that "it was incumbent upon the court to inform defendant of the risks involved in self-representation prior to granting his request to proceed pro se”. However, while Kaltenbach (supra) instructs that a court has a duty to inquire, when a defendant wishes to represent himself, as to whether defendant appreciates the dangers and disadvantages of giving up the fundamental right to counsel (supra, at 798-799), defendant did not waive his right to counsel. "Inasmuch as defendant did not waive his constitutional right to representation and did not proceed in his defense without the assistance of counsel, an inquiry for the purpose of ensuring that defendant’s waiver was competent, intelligent, and voluntary * * * was not called for”. (People v Rodriguez, 98 AD2d 961, 962-963, cert denied 469 US 818.) Defendant’s participation was limited solely to the summation and his counsel was present throughout and even interposed an objection to a comment made by the court during the summation. Consequently, Criminal Term was not obliged to conduct the " ’searching inquiry’ ” (People v Sawyer, 57 NY2d 12, 21, cert denied 459 US 1178) necessary before granting a defendant’s request to represent himself at trial. The circumstances attending the court’s grant of defendant’s application to simply make his own summation with counsel present and participating sufficiently complied with the rules regarding waiver (People v Landy, 59 NY2d 369, 377). Defendant Cabassa also contends that the People failed to prove that he possessed either gun or that the 9mm gun was operable. However, as detailed supra the evidence amply supported the jury’s finding that defendant Lind constructively possessed the weapons found at the roadblock and that Cabassa was his willing accomplice in that possession. Further, pursuant to Penal Law § 265.09 (1), a person is guilty of criminal use of a firearm in the first degree when he commits a specified violent felony offense and he "possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged”. Here, the evidence presented was that when the 9mm automatic was recovered, it was loaded but the People’s ballistics expert testified it did not appear to have been fired that night. Further, the gun was test fired manu — 184 — ally by the police only by using a screwdriver while inserting a cartridge. We note, however, that pursuant to the statute, there is no requirement that the gun actually had been used but rather that it be "loaded” and "deadly”, "from which a shot, readily capable of producing death or other serious injury may be discharged” (Penal Law § 265.09 [1]; emphasis added). Consequently, the evidence was sufficient to support the jury’s verdict that the weapon was operable at the time of its recovery (see, People v Cavines, 70 NY2d 882 [police officer at scene dismantled gun removing jammed bullet and gun test fired thereafter]; People v Francis, 126 AD2d 740 [weapon’s revolving mechanism not functioning properly but weapon could be aligned manually and discharged and was test fired]). We have examined the remaining contentions by defendants and find them to be without merit. Concur—Ross, J. P., Milonas and Asch, JJ.