People v. Gunn

176 A.D.3d 862

112 N.Y.S.3d 211

The PEOPLE, etc., Respondent,

v.Bjorn GUNN, Appellant.

2017–12985

Ind.No. 467/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 3, 2019

October 9, 2019

Mark Diamond, New York, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Caren C. Manzello and Marion Tang of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy Mazzei, J.), rendered November 13, 2017, convicting him of attempted murder in the second degree, criminal possession of a weapon in the third degree, unauthorized use of a motor vehicle in the first degree, grand larceny in the fourth degree, and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Mark D. Cohen, J.), of the suppression of the defendant's oral statement to law enforcement officials.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentences imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing in accordance herewith.

The defendant was charged, among other things, with attempting to murder his wife (hereinafter the complainant) with a knife during a physical altercation on February 23, 2017, which began in the couple's apartment and continued outside as she was trying to flee. At the trial, a witness who was standing outside the apartment complex at the time of the incident testified that at approximately 3:00 p.m., she heard screaming and saw the complainant and the defendant running toward the front of the building. The complainant was covered in blood and was being chased by the defendant. The witness further testified that the complainant looked like she was running for her life and was screaming "help, save me, call 911, he's trying to kill me." As the witness approached to render assistance, she saw that the defendant had a knife in his hand. The defendant then ran away.

The complainant, who was still in a hysterical and frightened state, told the witness: "He's trying to kill me ... call 911, he's trying to steal my stuff, he's stealing my car, I need my purse, he's going to steal my purse." The trial evidence further showed that the defendant left the apartment complex at 3:16 p.m. in a car registered in the complainant's name, and, at 3:23 p.m., the defendant made an ATM withdrawal in the amount of $100 using the complainant's debit card.

A paramedic who assisted the complainant at the scene testified, based on information received from the complainant, that the defendant had approached the complainant from behind, slashing at her neck with a serrated knife, and when the complainant tried to fight him off, he stabbed her twice in the chest and cut her hand during the struggle. None of the complainant's injuries were life-threatening, and except for the injury to her left hand, which severed a nerve and required two surgeries, the wounds were all superficial. However, some of the wounds to the complainant's neck were in the vicinity of the jugular vein and the carotid artery, and some of the wounds to the complainant's chest were in the vicinity of the aorta and superior vena cava.

Although the complainant did not testify at the trial, the statements she made to individuals at the scene in the minutes following the attack were admitted into evidence without objection.

At the time of his arrest, but before he was given Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), the defendant told the police that his marriage was over. Later, the defendant, after waiving his Miranda rights, gave a written statement to the police in which he admitted, among other things, that he and the complainant had a physical altercation that "got ugly," and that he put a knife to the complainant's throat.

The police recovered two blood-stained knives from the apartment where the altercation started. The blood recovered from the blades of both knives matched the complainant's DNA profile.

Contrary to the defendant's contention, his statement made to a police detective prior to being given Miranda warnings was voluntary and spontaneous and not the result of any police conduct or questioning which reasonably could have been expected to elicit an inculpatory response from him (see People v. Gonzales, 75 N.Y.2d 938, 939–940, 555 N.Y.S.2d 681, 554 N.E.2d 1269 ; People v. Foster, 153 A.D.3d 853, 854, 60 N.Y.S.3d 372 ; People v. Wallace, 128 A.D.3d 866, 866, 7 N.Y.S.3d 610 ). Accordingly, the hearing court properly denied suppression of that statement.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although an acquittal on one or more of the counts, including attempted murder in the second degree, would not have been unreasonable, upon reviewing the record here, we are satisfied that the trier of fact has given the evidence the weight it should be accorded (see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), and that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). Among other things, we note that while none of the complainant's injuries in this case were life-threatening, "the crime of attempted murder does not require actual physical injury to a victim at all" ( People v. Fernandez, 88 N.Y.2d 777, 783, 650 N.Y.S.2d 625, 673 N.E.2d 910 ; see ...