        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

899
KA 10-00387
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSE L. CASADO, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered August 3, 2009. The judgment
convicted defendant, upon a jury verdict, of attempted aggravated
murder of a police officer, attempted aggravated assault upon a police
officer and criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, attempted aggravated murder of a
police officer (Penal Law §§ 110.00, 125.26 [1] [a] [i]; [b]) and
attempted aggravated assault upon a police officer (§§ 110.00,
120.11). Defendant contends that his conviction of those two counts
should be reversed and those counts should be dismissed as duplicitous
because the evidence at trial establishes that there were two separate
and distinct shooting incidents. We reject that contention. We note
at the outset that defendant is correct that the two shooting
incidents constitute distinct criminal acts as opposed to a single,
continuing transaction (see People v Boykins, 85 AD3d 1554, 1555, lv
denied 17 NY3d 814; cf. People v Alonzo, 16 NY3d 267, 270-271; People
v Kaid, 43 AD3d 1077, 1079-1080). The first criminal act occurred
when defendant fired a shot in the direction of an unmarked police car
from the driveway of a residence, and the second criminal act occurred
when defendant fired two shots at Officer Ryan Hickey while being
pursued by him into the backyard of the residence. Nevertheless, the
indictment was not rendered duplicitous on that ground because only
the latter act is sufficient to constitute the crimes of attempted
aggravated murder of a police officer and attempted aggravated assault
upon a police officer as charged in counts one and two of the
indictment (cf. Boykins, 85 AD3d at 1555).
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                                                         KA 10-00387

     Count one of the indictment, as amplified by the bill of
particulars, alleges in relevant part that, “[o]n or about July 8,
2008, [at] approximately 11:15 PM, at or near 78 Evergreen Street, in
the City of Rochester, . . . [defendant], with intent to cause the
death of another person, Officer Ryan Hickey, . . . attempted to cause
the death of Officer Hickey by firing shots from a loaded handgun
toward him” (emphasis added). Count two of the indictment, as
amplified by the bill of particulars, alleged in relevant part that,
“[o]n or about July 8, 2008, [at] approximately 11:15 PM, at or near
78 Evergreen Street, in the City of Rochester, . . . [defendant], with
intent to cause serious physical injury to a person he knew or
reasonably should have known to be a police officer engaged in the
course of performing his official duties, Officer Ryan Hickey, . . .
attempted to cause such injury by means of a deadly weapon, to wit, a
loaded handgun” (emphasis added). Thus, counts one and two required
the People to prove that defendant intended to cause death and serious
physical injury to Officer Hickey, respectively (see Penal Law §§
120.11, 125.26 [1] [a] [i]). The evidence that defendant fired the
first shot in the direction of the unmarked police vehicle, however,
does not support the conclusion that defendant intended to kill or
seriously injure any particular police officer (see generally People v
Ramos, 19 NY3d 133, 135). Rather, each of the four officers in that
vehicle testified that defendant fired a single shot at the vehicle or
in the direction of the officers generally before fleeing. Indeed,
the officer who had been driving the vehicle testified that, after he
opened the door and put one foot out, “we were shot at” (emphasis
added). Another officer testified that, while exiting the vehicle, he
“observed the defendant raise a revolver and fire one shot at us”
(emphasis added). Officer Hickey similarly testified that he saw
defendant fire “one shot at us” (emphasis added). When asked where
defendant was aiming, Officer Hickey replied “I can tell you the
muzzle flash was pointing in our direction. I don’t know exactly
where he was aiming the gun” (emphasis added).

     By contrast, the trial testimony was clear that, after defendant
fled up the driveway and Officer Hickey began to pursue him, defendant
fired two shots at Officer Hickey. Officer Hickey testified
unequivocally that the two shots were directed at him: “He fired two
shots at me. I could clearly see the muzzle flashes coming in my
direction” (emphasis added). He explained: “I was chasing
[defendant], and I could see the form of his body turn towards me, at
which point he fired at me with the two shots.” Officer Hickey’s
testimony to that effect was corroborated by other witnesses.

     In light of the foregoing, we conclude that, while the evidence
regarding the first shot fired by defendant may establish a mental
state of depraved indifference, recklessness or an intent to kill a
police officer, it does not establish that defendant specifically
intended to kill or seriously injure Officer Hickey (see People v
Fernandez, 88 NY2d 777, 780; People v Cesario, 157 AD2d 795, 796, lv
denied 75 NY2d 917; cf. People v Cabassa, 79 NY2d 722, 728; People v
Hollenquest, 309 AD2d 1159, 1159, lv denied 3 NY3d 707; see generally
Penal Law § 15.05 [1], [3]). Thus, inasmuch as the evidence
                                 -3-                           899
                                                         KA 10-00387

establishes only a single act of attempted aggravated murder and
attempted aggravated assault as against Officer Hickey, i.e., the two
shots defendant fired directly at Officer Hickey, we conclude that
counts one and two of the indictment were not rendered duplicitous by
the trial testimony (see generally CPL 200.50 [3] - [7]; People v
Bowen, 60 AD3d 1319, 1320, lv denied 12 NY3d 913).

     Defendant further contends that Supreme Court improperly allowed
a prosecution witness to testify concerning prior bad acts by
defendant, i.e., that, prior to the shootings at issue, defendant
possessed a gun inside the residence and was part of a group of men
armed with guns who wanted to shoot at another house. With respect to
the testimony concerning defendant’s alleged prior gun possession, we
conclude that such testimony was properly admitted as evidence of a
motive for the shooting, i.e., to avoid capture in the presence of
presumably illegal firearms and to complete the narrative of events by
explaining why the police were summoned to the residence (see People v
Giuca, 58 AD3d 750, 750, lv denied 12 NY3d 915; People v Clarke, 5
AD3d 807, 809-810, lv denied 2 NY3d 797; see generally People v
Alvino, 71 NY2d 233, 241-242; People v Burnell, 89 AD3d 1118, 1120-
1121, lv denied 18 NY3d 922). Contrary to the contention of
defendant, the potential prejudice of such testimony did not outweigh
its probative value (see Burnell, 89 AD3d at 1121). Notably,
defendant admitted in his statement to the police, which was read into
evidence, that he “kn[e]w there were at least three guns in the house”
and that, earlier in the day, he “put a loaded black .380 inside on
top of the couch.” In addition, defendant testified that he fled when
the police arrived because he thought that the police were executing a
search warrant on the house and he knew that there were guns inside.

     With respect to the witness’s testimony concerning a group of
armed men, we note that the witness testified that she told the police
“that there were some guys out[, ] they all had guns and they wanted
to shoot at [her] friend’s house.” Contrary to defendant’s
contention, that testimony does not constitute prior bad act evidence.
The witness testified that there were several other men in the house,
and her statement does not specifically implicate defendant. Even
assuming, arguendo, that her testimony constitutes Molineux evidence,
we conclude that the testimony was admissible to establish motive and
to complete the narrative of events (see Giuca, 58 AD3d at 750), and
that the prejudicial effect of the statement did not outweigh its
probative value (see generally Alvino, 71 NY2d at 242). We note in
particular that, prior to the challenged testimony, the jury already
heard testimony from a police officer elicited by defense counsel that
there was a “beef between two possible gangs,” that the two groups had
exchanged gunfire earlier in the day and that tensions were high on
the street. The witness who testified regarding the group of armed
men also testified, without objection, that there was “conflict on and
off” between two neighborhood groups and that “they were shooting at
each other.”

     In any event, we conclude that any error in the admission of the
testimony concerning the prior bad acts is harmless. The evidence of
defendant’s guilt is overwhelming (see People v Finger, 266 AD2d 561,
                                 -4-                           899
                                                         KA 10-00387

561, affd 95 NY2d 894; Burnell, 89 AD3d at 1121; People v Thomas, 26
AD3d 241, 242, lv denied 6 NY3d 898), and there is no significant
probability that the jury would have acquitted defendant if the
allegedly improper Molineux evidence had been excluded (see People v
Orbaker, 302 AD2d 977, 978, lv denied 100 NY2d 541; People v Robinson,
202 AD2d 1044, 1045, lv denied 83 NY2d 1006; see generally People v
Crimmins, 36 NY2d 230, 241-242).

     Finally, defendant’s contention that the court erred in failing
to give a limiting instruction at the time the challenged testimony
was admitted is unpreserved for our review inasmuch as he did not
request a contemporaneous instruction (see Finger, 266 AD2d 561, 561;
see also Burnell, 89 AD3d at 1121; Thomas, 26 AD3d at 242). We
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
