State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 19, 2015 104029 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

GLENFORD C. HULL,

Appellant.

________________________________

Calendar Date: November 20, 2014

Before: McCarthy, J.P., Garry, Lynch and Clark, JJ.

__________

Jonathan I. Edelstein, New York City, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi (John L.

Hubbard of counsel), for respondent.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Coccoma, J.),

rendered January 26, 2011 in Delaware County, upon a verdict

convicting defendant of the crime of manslaughter in the first

degree.

Following a jury trial in 2006, defendant was convicted of

murder in the second degree after shooting his downstairs

neighbor (hereinafter the victim). On appeal, we vacated the

conviction and ordered a new trial, finding that defendant did

not receive the effective assistance of counsel (71 AD3d 1336

[2010]). A second trial was conducted and, in November 2010, a

jury acquitted defendant of murder in the second degree but

convicted him on a lesser included charge of manslaughter in the

first degree. Supreme Court denied defendant's subsequent motion
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to set aside the verdict and sentenced him to a prison term of 23

years, plus five years of postrelease supervision. Defendant now

appeals.

We affirm. Defendant first contends that the trial

evidence does not support a finding that he intended to seriously

injure the victim, and that Supreme Court accordingly erred in

charging the jury with the lesser included offense of

manslaughter in the first degree. There is no dispute that

manslaughter in the first degree is a lesser included offense of

intentional murder (see CPL 1.20 [37]). As a result, the

question is whether there was any reasonable view of the evidence

to support a finding that defendant intended to cause serious

physical injury to the victim rather than to kill him (see CPL

300.50 [1]; People v Martin, 59 NY2d 704, 705 [1983]; People v

Glover, 57 NY2d 61, 63 [1982]). We are, of course, mindful that

the issue of whether defendant intended to kill or seriously

injure the victim is one "for the jury, except in [the] most

unusual and exceptional circumstances" (People v James, 127 AD2d

485, 488 [1987]; see People v Moran, 246 NY 100, 103 [1927];

People v Owens, 251 AD2d 898, 899 [1998], lv denied 92 NY2d 951

[1998]).

Here, defendant and the victim were neighbors and, although

they had initially gotten along well, they had developed an

antipathy for one another. Shortly before the shooting, the

victim had pounded on the door of defendant's apartment and

shouted threats as a result of a noise dispute. Defendant yelled

through the door that the victim was "not going to like what"

happened if he emerged from the apartment, and defendant

retrieved a loaded handgun from his bedroom. He emerged after

silence prevailed, ostensibly to confirm that the victim had

left, although the victim's fiancee testified that she heard

defendant call out, "Be a man, say it to my face." Regardless of

what defendant said, the victim returned in a rage and ascended

the staircase toward defendant. Defendant did not withdraw into

the apartment but, as the victim reached out for him at the top

of the stairs, defendant raised his arms and pointed the gun

toward the victim. Defendant's daughter witnessed the incident

and testified that the handgun went off after defendant and the

victim began grappling for it. Defendant himself denied that any
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struggle for the handgun occurred, but admitted that he raised

his arms as the victim approached and that the handgun went off

after the victim made contact with it. A reasonable view of this

evidence is that an armed defendant emerged from his apartment

with the intention of confronting his longtime nemesis and

causing him harm. 

The evidence could reasonably support the further finding

that defendant intended to seriously injure and not kill the

victim. Defendant, had he wished to kill the victim, could have

easily shot the victim as the victim screamed and pounded on

defendant's apartment door or when the victim was ascending the

stairs toward defendant. The victim was instead shot once during

what the trial evidence suggests was a struggle for the gun

(compare People v Butler, 84 NY2d 627, 634 [1994]; People v

Moreno, 16 AD3d 438, 438 [2005], lv denied 5 NY3d 766 [2005]). 

It is also worthy of note that defendant, after shooting the

victim, performed first aid on him and summoned the authorities

(see People v Steinberg, 79 NY2d 673, 683 [1992]). Under these

circumstances, Supreme Court properly submitted manslaughter in

the first degree as a lesser included offense of murder in the

second degree (see People v Ford, 66 NY2d 428, 440-441 [1985];

People v Oliveri, 29 AD3d 330, 330-331 [2006], lvs denied 7 NY3d

760, 792 [2006]; People v Straker, 301 AD2d 667, 668 [2003], lv

denied 100 NY2d 587 [2003]).

Defendant additionally asserts that, because the jury could

not find that he acted with an intent to seriously injure the

victim, the verdict was not supported by legally sufficient

evidence and was against the weight of the evidence. Viewing the

evidence detailed above in a light most favorable to the People,

we find that a valid line of reasoning permits the finding that

defendant intended to seriously injure the victim and caused his

death (see People v Browne, 307 AD2d 645, 646 [2003], lv denied 1

NY3d 539 [2003]; People v Owens, 251 AD2d at 899-900). The

verdict was also not against the weight of the evidence, inasmuch

as the jury was free to, and plainly did, infer from defendant's

conduct that he harbored the requisite intent (see People v

Goley, 113 AD3d 1083, 1083 [2014]).
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Defendant's remaining contentions regarding the conduct of

the trial may be briefly disposed of. The People called

defendant's daughter to the stand, and she testified that

defendant and the victim were struggling for the gun when it went

off. Inasmuch as that version of events conflicted with her

testimony at the first trial and damaged the People's efforts to

prove that defendant intended to kill the victim, Supreme Court

properly permitted the People to use her prior testimony for

impeachment purposes (see CPL 60.35 [1]; People v Davis, 45 AD3d

1039, 1042 [2007], lv denied 10 NY3d 763 [2008]). Supreme Court

also acted properly in refusing to give a circumstantial evidence

charge to the jury "since there was both direct and

circumstantial evidence of defendant's guilt, notwithstanding

that defendant's intent was a matter to be inferred from the

evidence" (People v Hardy, 115 AD3d 511, 512 [2014], lv denied 23

NY3d 1037 [2014]; see People v Daddona, 81 NY2d 990, 992-993

[1993]). Supreme Court further conducted a thorough inquiry into

alleged juror misconduct and, given that defendant declined

Supreme Court's offer to conduct further inquiry, we perceive no

reason to address the issue (see CPL 270.35 [1]; People v Miller,

118 AD3d 1127, 1129-1130 [2014], lv denied 24 NY3d 1086 [2014]).

Lastly, we are unpersuaded that the sentence imposed was

harsh and excessive. The record discloses that Supreme Court

took into account defendant's age, health and relatively

uneventful criminal history. Supreme Court placed more emphasis

on the devastating effect that the offense had on the victim's

family, the violent nature of the offense and the fact that it

could have easily been avoided had defendant elected not to

confront the victim with a loaded handgun. We cannot say that

Supreme Court abused its discretion in doing so, and perceive no

extraordinary circumstances that would warrant a reduction of the

sentence in the interest of justice (see People v Vanderhorst,

117 AD3d 1197, 1201-1202 [2014], lv denied 24 NY3d 1089 [2014];

People v Hartman, 86 AD3d 711, 713 [2011], lv denied 18 NY3d 859

[2011]).

McCarthy, J.P. and Garry, J., concur.
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Lynch, J. (dissenting).

I respectfully dissent because, in my view, there is not a

reasonable view of the evidence to sustain a finding that

defendant intended to cause serious physical injury to the victim

rather than to kill him (see CPL 300.50 [1]; People v Martin, 59

NY2d 704, 705 [1983]; People v Glover, 57 NY2d 61, 63 [1982]). 

"[T]he element of intent . . . may be inferred from a defendant's

conduct and the surrounding circumstances, as well as from the

act itself" (People v Callicut, 101 AD3d 1256, 1258 [2012], lvs

denied 20 NY3d 1096, 1097 [2013] [internal quotation marks and

citation omitted]; see People v Kenyon, 108 AD3d 933, 937-938

[2013], lv denied 21 NY3d 1075 [2013]). While defendant

maintains that the shooting was accidental and he never intended

to shoot the victim, he asserts that it is not possible to

intentionally fire a weapon into a person's forehead from point

blank range with only the intent to seriously injure but not

kill. Here, in addition to the deteriorating relationship

between the victim and defendant and the escalating verbal

exchange preceding the event, the evidence shows that, during the

brief encounter between the victim and defendant at the top of

the stairway, the victim was shot in the forehead from a range of

only a few inches. As such, I perceive no reasonable view of the

evidence to support a finding that defendant intended only to

cause serious physical injury (see e.g. People v Hendrie, 24 AD3d

871, 873-874 [2005], lv denied 6 NY3d 776 [2006]; People v

Moreno, 16 AD3d 438, 438 [2005], lv denied 5 NY3d 766 [2005];

People v Maldonado, 5 AD3d 505, 506 [2004], lv denied 3 NY3d 643

[2004]; People v Kelly, 221 AD2d 661, 662 [1995], lv denied 87

NY2d 974 [1996], cert denied 517 US 1200 [1996]; People v

DeLucia, 302 AD2d 280, 280 [2003], lv denied 100 NY2d 561

[2003]). It follows that Supreme Court erred by including a

charge of manslaughter in the first degree as a lesser included

offense. Since defendant was acquitted of the only charge in the

indictment, the indictment should be dismissed, without prejudice

to the People to re-present any appropriate charges to another

grand jury (see CPL 470.55 [1]; People v Munck, 92 AD3d 63, 75

[2011]; People v McAdams, 22 AD3d 885, 886 [2005]). 
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court