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

419
KA 09-02479
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

DWIGHT R. DELEE, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DWIGHT R. DELEE, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered August 18, 2009. The judgment convicted defendant,
upon a jury verdict, of manslaughter in the first degree as a hate crime
and criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is modified
on the law by reversing that part convicting defendant of manslaughter
in the first degree as a hate crime (Penal Law §§ 125.20 [1]; 485.05 [1]
[a]) and dismissing count one of the indictment and as modified the
judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of manslaughter in the first degree as a hate crime (Penal
Law §§ 125.20 [1]; 485.05 [1] [a]) and criminal possession of a weapon
in the third degree (§ 265.02 [1]), defendant contends that the verdict
is inconsistent insofar as the jury convicted him of manslaughter in the
first degree as a hate crime but acquitted him of manslaughter in the
first degree (§ 125.20 [1]). We agree with that contention and
therefore modify the judgment accordingly.

     Defendant was charged with killing the victim by shooting him with
a rifle from close range. The victim was a young man who dressed as a
woman and was known to be homosexual. The indictment charged defendant
with three offenses: (1) murder in the second degree, alleging that he
intentionally killed the victim due to his sexual orientation; (2)
intentional murder in the second degree; and (3) criminal possession of
a weapon in the third degree. The case proceeded to trial and, without
objection from defendant or the People, County Court submitted several
lesser included offenses to the jury. With respect to murder in the
second degree as a hate crime, the court charged the lesser included
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offenses of manslaughter in the first degree as a hate crime and
manslaughter in the second degree as a hate crime. For murder in the
second degree, the court charged the lesser included offenses of
manslaughter in the first degree and manslaughter in the second degree.

     By its verdict, the jury found defendant guilty of manslaughter in
the first degree as a hate crime and criminal possession of a weapon in
the third degree. The jury acquitted defendant of all remaining
charges, except for manslaughter in the second degree as a hate crime,
which was not reached given the verdict on manslaughter in the first
degree as a hate crime. After the verdict was rendered but before the
jurors were discharged, defense counsel stated, “Judge so that we can
preserve the record here. We need to raise a motion to vacate a
conviction on the manslaughter in the first degree as a hate crime, as
an inconsistent verdict with acquittal of manslaughter in the first
degree.” Defendant thereby preserved for our review his contention on
appeal that the verdict is inconsistent in that respect (see People v
Horning, 263 AD2d 955, 955, lv denied 94 NY2d 824; cf. People v Carter,
7 NY3d 875, 876). Although the court stated that it understood defense
counsel’s position, the court nevertheless discharged the jurors and did
not direct them to reconcile their verdict. Defendant later moved to
set aside the verdict with respect to manslaughter in the first degree
as a hate crime, contending that it was inconsistent with the jury’s
finding of not guilty on the charge of manslaughter in the first degree.
The court denied the motion without explanation. This appeal ensued.

     “A verdict is inconsistent or repugnant . . . where the defendant
is convicted of an offense containing an essential element that the jury
has found the defendant did not commit” (People v Trappier, 87 NY2d 55,
58). “A verdict shall be set aside as repugnant only when it is
inherently inconsistent when viewed in light of the elements of each
crime as charged to the jury” (People v Brown, 102 AD3d 704, 704; see
People v Tucker, 55 NY2d 1, 4, rearg denied 55 NY2d 1039), “without
regard to the accuracy of those instructions” (People v Muhammad, 17
NY3d 532, 539). “The underlying purpose of this rule is to ensure that
an individual is not convicted of ‘a crime on which the jury has
actually found that the defendant did not commit an essential element,
whether it be one element or all’ ” (id. at 539, quoting Tucker, 55 NY2d
at 6).

     Here, all of the elements of manslaughter in the first degree are
elements of manslaughter in the first degree as a hate crime. The court
thus properly instructed the jury that the only difference between the
two crimes in this case is that manslaughter in the first degree as a
hate crime has an added element requiring the People to prove that
defendant intentionally selected the victim due to his sexual
orientation. By acquitting defendant of manslaughter in the first
degree, the jury necessarily found that the People failed to prove
beyond a reasonable doubt at least one element of manslaughter in the
first degree. To find defendant guilty of manslaughter in the first
degree as a hate crime, however, the jury must have found that the
People proved beyond a reasonable doubt all of the elements of
manslaughter in the first degree, plus the added element that defendant
selected the victim due to his sexual orientation. It therefore follows
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that the verdict is inconsistent.

     Significantly, the People do not dispute that the verdict is
inconsistent based on the elements of the offenses as charged to the
jury. Instead, the People contend that the inconsistent verdict should
be allowed to stand because the court’s remaining instructions may
reasonably have been interpreted by the jurors as giving them a choice
of convicting defendant of manslaughter in the first degree as a hate
crime or manslaughter in the first degree. We reject that contention.
As a preliminary matter, we note that the jury foreperson, in her
affidavit submitted by the People in opposition to defendant’s posttrial
motion, did not state that the jurors interpreted the court’s
instructions in the manner suggested by the People, and there is no
other evidence in the record to support the People’s theory. In any
event, even assuming, arguendo, that the court suggested to the jurors
in its instructions that they could convict defendant of only one of the
manslaughter in the first degree charges, we conclude that such a
“suggestion” would be immaterial inasmuch as the Court of Appeals has
made clear that we may “look[] to the record only to review the jury
charge so as to ascertain what essential elements were described by the
trial court” (Tucker, 55 NY2d at 7 [emphasis added]; see generally
Muhammad, 17 NY3d at 539).

     Relying on People v Mason (101 AD3d 1659, revd on other grounds ___
NY3d ___ [June 11, 2013]), the People further contend that the “split
verdict” is not inconsistent or repugnant because it may have been the
result of mistake, compromise or an exercise of mercy by the jury. We
reject that contention as well. In Mason, the jury’s verdict was
apparently illogical but not, as here, legally or theoretically
impossible based on the elements of the offenses charged to the jury. A
verdict that is legally or theoretically impossible cannot be upheld on
the ground that the verdict was the result of mistake, compromise or
mercy (see Muhammad, 17 NY3d at 539-540; Tucker, 55 NY2d at 8-9).

     We respectfully disagree with our dissenting colleague that
ordinary or plain manslaughter in the first degree is a lesser included
offense of manslaughter in the first degree as a hate crime. Indeed,
both offenses are class B violent felonies, and it thus cannot be said
that one is the lesser of the other. We therefore disagree with the
dissent that the court should have instructed the jury that, if it found
defendant guilty of manslaughter in the first degree as a hate crime, it
should not consider the second count, charging manslaughter in the first
degree. The court’s “instructions to the jury will be examined only to
determine whether the jury, as instructed, must have reached an
inherently self-contradictory verdict” (Tucker, 55 NY2d at 8) and here,
upon examining the court’s instructions, we conclude that they did not
necessitate an inconsistent verdict (see generally People v Johnson, 87
NY2d 357, 360). In any event, even crediting the theory of the dissent
that ordinary or plain manslaughter in the first degree is a lesser
included offense of manslaughter in the first degree as a hate crime,
the verdict is nevertheless inconsistent because the jury found
defendant not guilty of ordinary or plain manslaughter in the first
degree, and thus “the jury . . . necessarily decided that one of the
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                                                         KA 09-02479

essential elements [of ordinary or plain manslaughter in the first
degree] was not proven beyond a reasonable doubt” (Muhammad, 17 NY3d at
539).

     Although it is true, as the dissent points out, that the jurors may
have complied with the “letter and spirit of the law” and that jurors,
as lay persons, are not legal experts, in our view, both of those points
are immaterial. The role of the court, as a legal expert, is to
instruct the jurors on the law and where, as here, an attorney timely
objects to a verdict as inconsistent, it is incumbent upon the court to
inform the jurors of the defect in their verdict and to direct them to
resume deliberations so as to render a proper verdict (see CPL 310.50
[2]; People v Robinson, 45 NY2d 448, 452). The court’s failure to do so
in this case constitutes reversible error. Whether the verdict is
“reasonable and logical,” as the dissent concludes, is of no moment
inasmuch as the verdict is “inherently repugnant on the law” (Muhammad,
17 NY3d at 538).

     In sum, based on our review of the elements of the offenses as
charged to the jury, we conclude that the verdict is inconsistent, i.e.,
“legally impossible” (id. at 539), insofar as it finds defendant guilty
of manslaughter in the first degree as a hate crime but not guilty of
manslaughter in the first degree. We therefore modify the judgment
accordingly (see generally People v Hampton, 61 NY2d 963, 964).

     We have reviewed defendant’s remaining contentions in both his main
and supplemental pro se briefs and conclude that they lack merit.

     All concur except PERADOTTO, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent because I disagree
with the majority that the verdict is inconsistent insofar as the jury
convicted defendant of manslaughter in the first degree as a hate crime
(Penal Law §§ 125.20 [1]; 485.05 [1] [a]) but acquitted him of ordinary
manslaughter in the first degree (§ 125.20 [1]). In my view, the jury’s
verdict is reasonable and logical based upon the elements of the crimes
as charged to the jury and, therefore, should not be disturbed.

     On November 14, 2008, the victim was the front-seat passenger in a
vehicle driven by his brother. Their friend was sitting in the back
seat of the vehicle. The victim was homosexual, regularly dressed in
women’s clothing, and preferred to be known as a female. According to
more than one witness, the victim’s sexual orientation, clothing
preferences and gender identity were common knowledge in the community.
The victim’s brother pulled up in front of a house where a number of
people were congregating, and the occupants of the vehicle proceeded to
converse with some friends. Meanwhile, witnesses overheard several
members of a different group of people on the street, which included
defendant, making derogatory remarks about homosexuals. Defendant then
went into the house, retrieved a rifle, and walked over to the victim’s
vehicle. As defendant approached the vehicle, a witness overheard him
say, “We don’t play that faggot shit.” Defendant then pointed the rifle
into the open window of the vehicle and fired a single shot. Another
witness testified that, immediately prior to the shooting, defendant
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                                                         KA 09-02479

made comments to the effect that he was “not done with this faggot[] . .
. [He]’s not done with this faggot shit, and they needed to get out of
there.” A third witness heard defendant say, “Get you faggots, get out
of here . . . Get the f*** out of here.” The bullet grazed the victim’s
brother and struck the victim, who died shortly thereafter as a result
of extensive internal bleeding.

     Defendant was subsequently charged in a three-count indictment with
murder in the second degree as a hate crime, murder in the second
degree, and criminal possession of a weapon in the third degree.
Without objection from defendant or the People, County Court also
submitted several lesser included offenses to the jury. Specifically,
the court charged manslaughter in the first degree as a hate crime and
manslaughter in the second degree as a hate crime as lesser included
offenses of murder in the second degree as a hate crime, and
manslaughter in the first and second degrees as lesser included offenses
of murder in the second degree. In its charge to the jury, the court
emphasized that there were two sets of charged offenses: (1) murder in
the second degree as a hate crime and the lesser included offenses of
manslaughter in the first and second degrees as hate crimes as charged
in the first count of the indictment; and (2) murder in the second
degree and the lesser included offenses of manslaughter in the first and
second degrees, i.e., simple or ordinary (hereafter, non-hate) murder or
manslaughter as charged in the second count of the indictment. After
explaining the elements of the hate crime offenses, the court told the
jury that, “[i]rrespective of your verdicts regarding the crime of
murder in the second degree as a hate crime, and the lesser included
offenses of manslaughter in the first degree and manslaughter in the
second degree as a hate crime, whether it be guilty or not guilty, you
must next go on to consider the second count of the indictment, murder
in the second degree, and the lesser included offenses of manslaughter
in the first degree and manslaughter in the second degree.” The court
further stated that “[t]he Second Count of the indictment charges the
same murder as alleged in the First Count but not as a hate crime”
(emphasis added).

     In response to a jury note, the court further instructed the jury
as follows: “The best way I can define the difference between Count
One, which is murder in the second degree as a hate crime, and the
lesser-included offenses of manslaughter in the first degree and
manslaughter in the second degree as a hate crime, and Count Two, which
is just murder in the second degree, and then the lesser included
offenses of manslaughter in the first degree and manslaughter in the
second degree, is one element. One element separates each of the
charges. That element is when that person intentionally selects the
person against whom the offense is committed . . . in whole or in
substantial part because of a belief or perception regarding the sexual
orientation of a person, regardless of whether the belief or perception
is correct. That element is not included in murder in the second
degree, manslaughter in the first degree, or manslaughter in the second
degree. It is only included in murder in the second degree as a hate
crime, manslaughter in the first degree as a hate crime, and
manslaughter in the second degree as a hate crime. There lies the
difference between the two. That element.” The court continued: “With
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regard to the Second Count, murder in the second degree [and the lesser
includeds], they are exactly the same as the hate crimes without the
added element that the accused selected the person against whom the
offense was committed or intended to be committed in whole or in
substantial part because of a belief or perception regarding the sexual
orientation of a person.”

     The jury returned the following verdict:

                               Count One

     Murder in the second degree as a hate crime   NOT GUILTY

     Manslaughter in the first degree as a hate crime    GUILTY

     Manslaughter in the second degree as a hate crime       NOT REACHED

                               Count Two

     Murder in the second degree                   NOT GUILTY

     Manslaughter in the first degree              NOT GUILTY

     Manslaughter in the second degree             NOT GUILTY

                              Count Three

     Criminal possession of a weapon 3d degree      GUILTY

     As the majority notes, defendant preserved for our review his
contention that the verdict is inconsistent because the jury convicted
him of manslaughter in the first degree as a hate crime but acquitted
him of ordinary manslaughter in the first degree, inasmuch as he
objected to the alleged inconsistency before the jury was discharged
(cf. People v Sharp, 104 AD3d 1325, 1326). Contrary to the conclusion
of the majority, however, I reject defendant’s contention and conclude
that the jury verdict should stand.

     It is well settled that “ ‘a verdict as to a particular count shall
be set aside’ as repugnant ‘only when it is inherently inconsistent when
viewed in light of the elements of each crime as charged to the jury’ .
. . without regard to the accuracy of those instructions” (People v
Muhammad, 17 NY3d 532, 539, quoting People v Tucker, 55 NY2d 1, 4, rearg
denied 55 NY2d 1039 [emphasis added]; see People v Hampton, 61 NY2d 963,
964 [“The determination as to the repugnancy of the verdict is made
solely on the basis of the trial court’s charge and not on the
correctness of those instructions”]). Thus, the critical determination
is “whether the jury, as instructed, must have reached an inherently
self-contradictory verdict” (Tucker, 55 NY2d at 8 [emphasis added]).
The concern underlying the repugnancy rule is that “a defendant should
not be convicted of a crime when the jury has found that he [or she] did
not commit one or more of its essential elements” (People v Loughlin, 76
NY2d 804, 806).
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     In my view, the jury charge, coupled with the structure and order
of the verdict sheet, conveyed to the jury that defendant was charged
with hate and non-hate crimes based upon the same act, i.e., the fatal
shooting of the victim. The jury’s verdict and, indeed, the notes it
sent to the court, reflect the jury’s determination that the shooting at
issue was a hate crime, i.e., that defendant intentionally selected the
victim because of his sexual orientation (see Penal Law § 485.05 [1]
[a]). During deliberations, the jury sent out a note requesting “the
definition of manslaughter murder, hate crime” (emphasis added). The
court, apparently misunderstanding the jury’s request, proceeded to
discuss the difference between count one, the hate crimes, and count
two, the “non-hate” crimes. The jury then sent out a second note
requesting an explanation of “the difference . . . between manslaughter
1 and manslaughter 2, as a hate crime only” (emphasis added). The above
notes indicate that the jury was convinced, as amply supported by the
record, that the fatal shooting of the victim constituted a hate crime,
but that the jury was grappling with whether to convict defendant of the
hate crime of murder in the second degree, manslaughter in the first
degree, or manslaughter in the second degree. After the jury determined
that defendant was guilty of manslaughter in the first degree as a hate
crime, it proceeded to the second count of the indictment, as the court
instructed it to do, and found defendant not guilty of ordinary murder
in the second degree and the lesser included offenses thereof.

     If, as the majority states, it is “legally impossible” to commit
manslaughter in the first degree as a hate crime without thereby
committing ordinary manslaughter in the first degree because “all of the
elements of manslaughter in the first degree are elements of
manslaughter in the first degree as a hate crime,” then ordinary or
plain manslaughter in the first degree is a lesser included offense of
manslaughter in the first degree as a hate crime (see CPL 1.20 [37];
People v Glover, 57 NY2d 61, 63), and the jury should have been
instructed accordingly. Although the majority states that both offenses
are class B violent felony offenses and “it thus cannot be said that one
is the lesser of the other,” the statute imposes an enhanced sentence on
a defendant convicted of manslaughter in the first degree as a hate
crime in comparison to plain or ordinary manslaughter in the first
degree (see Penal Law § 485.10; People v Assi, 14 NY3d 335, 338). The
court therefore should have instructed the jury that, if its verdict on
the first count was guilty, it should not consider the second count (see
CJI2d[NY] Lesser Included Offense; see generally People v Johnson, 81
AD3d 1428, 1429, lv denied 16 NY3d 896). Indeed, the court provided
that instruction relative to manslaughter in the first and second
degrees as a hate crime, which the jury followed by not reaching the
lesser charge of manslaughter in the second degree once it found
defendant guilty of the greater charge of manslaughter in the first
degree. Here, however, the court specifically instructed the jury that,
“[i]rrespective of your verdicts regarding the crime of murder in the
second degree as a hate crime, and the lesser included offenses of
manslaughter in the first degree and manslaughter in the second degree
as a hate crime, whether it be guilty or not guilty, you must next go on
to consider the second count of the indictment, murder in the second
degree, and the lesser included offenses of manslaughter in the first
degree and manslaughter in the second degree” (emphasis added). Thus,
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once the jury determined that defendant was guilty of a hate crime as
charged in the first count of the indictment, that is, that defendant
acted with the enhanced intent of targeting the victim based upon his
sexual orientation, it was entirely reasonable for the jury to determine
relative to the second count of the indictment that defendant was not
guilty of “murder . . . not as a hate crime” or “just murder,” as the
court characterized it (emphases added).

     Indeed, an affidavit of the jury foreperson, sworn to exactly one
week after the verdict, states that, after concluding that defendant was
the shooter, the jury proceeded to “deliberate on whether the case was a
hate crime as defined by the judge. We determined that [defendant]’s
motive and actions did meet the criteria as defined by the judge for a
hate crime. We came to that decision relatively quickly.” According to
the foreperson, the jury then “discussed the other charges . . . that
were not hate crimes, but did not find him guilty of those charges once
we had determined that this was a hate crime” (emphasis added). In my
view, that analysis makes perfect sense in light of the court’s
instructions and the distinct, “particularly heinous nature of criminal
acts that are committed against individuals because of prejudice” (NY
Bill Jacket, 2000 AB 30002, ch 107, Mem of Atty Gen). In enacting the
Hate Crimes Act of 2000, the legislature “found” and “determined” in
Penal Law § 485.00 that “[h]ate crimes do more than threaten the safety
and welfare of all citizens. They inflict on victims incalculable
physical and emotional damage and tear at the very fabric of free
society. Crimes motivated by invidious hatred toward particular groups
not only harm individual victims but send a powerful message of
intolerance and discrimination to all members of the group to which the
victim belongs. Hate crimes can and do intimidate and disrupt entire
communities and vitiate the civility that is essential to healthy
democratic processes.” According to the legislature, the then-current
law did “not adequately recognize the harm to public order and
individual safety that hate crimes cause. Therefore, our laws must be
strengthened to provide clear recognition of the gravity of hate crimes
and the compelling importance of preventing their recurrence” (id.
[emphasis added]; see Assi, 14 NY3d at 338). As New York’s Attorney
General stated in support of the hate crime legislation, “[b]y employing
this new law to the fullest, our government will send a powerful message
to victims and others like them that, regardless of personal
characteristics or lifestyle, they are valued members of the community,
and will make clear to victimizers that this state does not tolerate
hatred founded upon bias and prejudice” (NY Bill Jacket, 2000 AB 30002,
ch 107, Mem of Atty Gen [emphasis added]). In my view, the jury
complied with both the letter and spirit of the law by concluding, based
upon the overwhelming evidence before it, that the fatal shooting of the
victim was a hate crime, not a “non-hate” or “ordinary” criminal act.
It cannot be said that the jury, as instructed, “must have reached an
inherently self-contradictory verdict” (Tucker, 55 NY2d at 8).

     In sum, I conclude that we should not set aside the jury’s verdict
and modify the judgment herein based upon a result that the court’s
instructions permitted or even invited (see generally Muhammad, 17 NY3d
at 539; Tucker, 55 NY2d at 8). The jury determined that defendant shot
the victim because of his sexual orientation and thus that defendant was
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guilty of manslaughter in the first degree as a hate crime. Defendant
did not simply shoot the victim for some other “non-hate” reason or no
reason at all, and thus the jury determined that defendant was not
guilty of “ordinary” manslaughter in the first degree. In my view, this
is in accord with “the fundamental principle that the jury should be
permitted to render a verdict that fully reflects defendant’s
culpability” (People v Johnson, 87 NY2d 357, 360-361). Jurors are not
legal experts and, given the instructions that were provided in this
case, I cannot conclude that the jury’s verdict was inconsistent,
illogical, or contradictory. I otherwise agree with the majority that
defendant’s remaining contentions in his main and pro se supplemental
briefs lack merit, and I would therefore affirm the judgment.




Entered:   July 19, 2013                       Frances E. Cafarell
                                               Clerk of the Court
