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

1274
KA 13-01282
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD E. VANGORDEN, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered January 11, 2013. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the first
degree (two counts), tampering with physical evidence (two counts),
criminal mischief in the second degree, criminal use of a firearm in
the first degree, criminal possession of a weapon in the fourth degree
and reckless endangerment in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the conviction of attempted murder
in the first degree under counts one and two of the indictment to
attempted murder in the second degree (Penal Law §§ 110.00, 125.25
[1]), reducing the conviction of reckless endangerment in the first
degree under count ten of the indictment to reckless endangerment in
the second degree (§ 120.20), and vacating the sentence imposed, and
as modified the judgment is affirmed, and the matter is remitted to
Steuben County Court for the filing of a predicate felony offender
statement, sentencing on the counts reduced herein, and resentencing
on the remaining counts.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts of attempted murder in
the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]; [b]),
criminal use of a firearm in the first degree (§ 265.09 [1] [b]), and
reckless endangerment in the first degree (§ 120.25). Defendant was
driving a pickup truck, with his girlfriend as a passenger, when two
State Police officers attempted to stop him for a traffic violation.
Defendant fled from the officers at high speeds, stopped for a short
time, and then tried to drive off again. After briefly driving off
the road and getting stuck, defendant backed out onto the road and was
facing the police vehicle from a distance of about 50 feet. He
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                                                         KA 13-01282

accelerated toward the police vehicle, swerved to his left, “rammed”
the passenger side of the police vehicle with the passenger side of
his truck, and then drove away. The officers kept pursuing defendant,
and he slowed down, held a rifle out the rear window of the truck, and
fired at least two shots, one of which struck the police vehicle near
its driver’s seat from an estimated distance of 36 feet. Defendant
was convicted of, inter alia, attempted murder in the first degree
with respect to each officer and reckless endangerment in the first
degree with respect to his girlfriend. He was acquitted of two
additional counts of reckless endangerment in the first degree
pertaining to the officers.

     We reject defendant’s contention that the counts of the
indictment charging attempted murder in the first degree were
jurisdictionally defective because they failed to allege that he was
more than 18 years old when the crimes occurred (see Penal Law
§ 125.27 [1] [b]; see generally People v Iannone, 45 NY2d 589, 600).
By alleging that defendant committed “Attempted Murder in the First
Degree,” those counts “adopt[ed] the title of” the first-degree murder
statute and incorporated all of the elements of that crime, including
the age element, thereby affording defendant fair notice of the
charges against him (People v Ray, 71 NY2d 849, 850; see People v
Real, 293 AD2d 251, 251, lv denied 98 NY2d 860; see generally People v
D’Angelo, 98 NY2d 733, 735; People v Cohen, 52 NY2d 584, 586).

     Defendant further contends that the attempted murder counts were
duplicitous as indicted inasmuch as they failed to specify which of
his shots was intended to kill each officer. Even assuming, arguendo,
that defendant’s contention is preserved for our review as a result of
County Court’s rejection of defendant’s generalized assertion in his
omnibus motion that the indictment “include[d] duplicitous counts”
(cf. People v Rivera, 257 AD2d 425, 425-426, lv denied 93 NY2d 901;
see generally People v Allen, 24 NY3d 441, 448-450), we conclude that
it is without merit. “ ‘[T]here is no general requirement that the
jury reach agreement on the preliminary factual issues which underlie
the verdict,’ ” such as which shot was intended for each officer
(People v Mateo, 2 NY3d 383, 408, cert denied 542 US 946; see People v
Del-Debbio, 244 AD2d 195, 195, lv denied 91 NY2d 925).

     As the People correctly concede, however, the evidence is legally
insufficient to establish that defendant was more than 18 years old at
the time of the crimes. Although defendant failed to preserve that
contention for our review (see People v Castro, 286 AD2d 989, 989-990,
lv denied 97 NY2d 680), we exercise our power to review it as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant was in fact 38 years old at the time of the crimes in
September 2011, and the jury naturally had the opportunity to observe
his appearance during his trial in 2012, but that opportunity “does
not, by itself, satisfy the People’s obligation to prove defendant’s
age” (Castro, 286 AD2d at 990; see People v Blodgett, 160 AD2d 1105,
1106, lv denied 76 NY2d 731), and there was no evidence at trial
bearing on his age (cf. People v Kessler, 122 AD3d 1402, 1403, lv
denied 25 NY3d 990; People v Perryman, 178 AD2d 916, 917-918, lv
denied 79 NY2d 1005). The evidence is sufficient to establish that
                                 -3-                          1274
                                                         KA 13-01282

defendant intended to kill each of the officers (see generally People
v Cabassa, 79 NY2d 722, 728, cert denied sub nom. Lind v New York, 506
US 1011), and we reject defendant’s further contention that the
verdict is against the weight of the evidence with respect to his
intent (see People v Simcoe, 75 AD3d 1107, 1108-1109, lv denied 15
NY3d 924; see generally People v Bleakley, 69 NY2d 490, 495). We
therefore modify the judgment by reducing the conviction under counts
one and two to attempted murder in the second degree (§§ 110.00,
125.25 [1]), and we remit the matter to County Court for sentencing on
those counts.

     Again assuming, arguendo, that defendant’s duplicity contention
is preserved for our review, we conclude that the reckless
endangerment count of which he was convicted was not duplicitous.
Reckless endangerment may be charged as a continuing offense, and
defendant’s conduct took place in the course of a single incident
without “cessation or suspension in the criminal activity,” such that
a single count of reckless endangerment with respect to his girlfriend
was proper even if, as he contends on appeal, she was exposed to
multiple dangers over the course of the incident (People v Flanders,
111 AD3d 1263, 1265-1266, affd 25 NY3d 997; see People v Wells, 141
AD3d 1013, 1014-1015; cf. People v Boykins, 85 AD3d 1554, 1555, lv
denied 17 NY3d 814). Moreover, we agree with the court that the three
counts of reckless endangerment in the indictment were not
multiplicitous inasmuch as each count involved a different victim (see
generally People v Cunningham, 12 AD3d 1131, 1132, lv denied 4 NY3d
829, reconsideration denied 5 NY3d 761). Defendant correctly notes
that conduct endangering multiple victims may be charged in a single
count of reckless endangerment without violating the prohibition
against duplicity (see People v Stockholm, 279 AD2d 704, 706, lv
denied 96 NY2d 807), but in our view a single count is not required in
such cases (see generally People v Payne, 71 AD3d 1289, 1290-1291, lv
denied 15 NY3d 777). In any event, we note that the remedy for
multiplicitous counts is dismissal of all but one of the affected
counts (see People v Pruchnicki, 74 AD3d 1820, 1822, lv denied 15 NY3d
855) and defendant was convicted of only one of the counts in
question.

     We agree with defendant that the reckless endangerment count of
which he was convicted is not supported by legally sufficient evidence
inasmuch as the record fails to establish that his conduct exposed his
girlfriend to “a grave risk of death” (Penal Law § 120.25; see People
v Hatch, 66 AD3d 1494, 1495). There was evidence that defendant
“rammed” the side of the police vehicle with the part of his truck in
which his girlfriend was sitting, but neither officer could estimate
how fast defendant was going at impact, and the relatively short
distance he traveled toward the police vehicle tended to show that he
could not have been going very fast. Furthermore, both vehicles
remained operable after the collision, and there was no evidence that
anyone sustained any injury from it. Even viewing the evidence in the
light most favorable to the People (see People v Contes, 60 NY2d 620,
621), we conclude that it is legally insufficient to establish that
the collision created a grave risk of death to defendant’s girlfriend
                                 -4-                          1274
                                                         KA 13-01282

(see People v Ostraticky, 117 AD2d 759, 759-760; see generally People
v Hurdle, 106 AD3d 1100, 1101-1103, lv denied 22 NY3d 956, 996; Hatch,
66 AD3d at 1495). We also conclude that the evidence does not
establish that defendant’s girlfriend was exposed to a grave risk of
death at any other time during the incident as a whole. Because the
evidence concerning the collision is sufficient to establish that
defendant’s reckless conduct created a significant risk of serious
physical injury to his girlfriend, we further modify the judgment by
reducing the conviction under count ten to reckless endangerment in
the second degree (§ 120.20; see Ostraticky, 117 AD2d at 760), and we
remit the matter to County Court for sentencing on that count as well.

     By failing to request different jury instructions or to object to
the charge as given, defendant failed to preserve his challenges to
the jury instructions on the counts charging attempted murder and
criminal use of a firearm (see People v Autry, 75 NY2d 836, 838-839;
People v Townsley, 50 AD3d 1610, 1611, lv denied 11 NY3d 742). We
reject his contention that the alleged error in the jury instructions
on criminal use of a firearm constitutes a mode of proceedings error
(see generally Autry, 75 NY2d at 839), and we decline to review his
unpreserved challenges as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Although defendant is correct that
attempted assault in the first degree (Penal Law §§ 110.00, 120.10
[1]) is not a lesser included offense of attempted murder in the first
degree (see People v Thomson, 13 AD3d 805, 806-807, lv denied 4 NY3d
836), he waived his right to complain of the court’s error in that
regard by failing to object (see People v Ford, 62 NY2d 275, 280-281).
In addition, we conclude that the defendant’s conviction of attempted
murder when the jury had before it the purported lesser included
offense of attempted assault in the first degree “forecloses [his]
challenge to the court’s refusal to charge” attempted assault in the
second degree under Penal Law §§ 110.00 and 120.05 (1) as a lesser
included offense (People v Boettcher, 69 NY2d 174, 180; see People v
Cordato, 85 AD3d 1304, 1307-1308, lv denied 17 NY3d 815). Even though
attempted assault in the first degree is not an actual lesser included
offense of attempted murder, the failure to submit lesser degrees of
attempted assault could not have affected the jury’s deliberations
under the circumstances of this case (see generally Boettcher, 69 NY2d
at 180).

     We reject defendant’s contention that he was denied effective
assistance of counsel. In particular, defendant has not demonstrated
that counsel was ineffective in not pursuing an extreme emotional
disturbance defense inasmuch as there is no indication in the record
that any basis existed for such a defense (see People v Schumaker, 136
AD3d 1369, 1372, lv denied 27 NY3d 1075, reconsideration denied 28
NY3d 974; People v Naqvi, 132 AD3d 779, 780-781, lv denied 27 NY3d
1072), nor has he demonstrated that counsel lacked a strategic or
other legitimate reason for not challenging a certain prospective
juror for cause (see People v Barboni, 21 NY3d 393, 405-407; People v
Anderson, 113 AD3d 1102, 1103, lv denied 22 NY3d 1196). We have
reviewed the remaining allegations of ineffective assistance raised by
defendant, and we conclude that he received meaningful representation
(see generally People v Carver, 27 NY3d 418, 422; People v Benevento,
                                 -5-                          1274
                                                         KA 13-01282

91 NY2d 708, 712-713).

     Finally, defendant contends that the People failed to comply with
the procedural requirements of CPL 400.21 in seeking to have him
sentenced as a second felony offender given that they did not file a
predicate felony offender statement as required by CPL 400.21 (2).
That contention is not preserved for our review (see People v
Pellegrino, 60 NY2d 636, 637; People v Guillory, 98 AD3d 835, 835-836,
lv denied 20 NY3d 932), but we exercise our discretion to review it as
a matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]; People v Loper, 118 AD3d 1394, 1395-1396, lv denied 25 NY3d
1204), and we agree with defendant. Contrary to the contention of the
prosecutor at sentencing, the need for a predicate felony offender
statement was not obviated by defendant’s pretrial admission to a
special information setting forth his prior felony conviction as an
element of a count charging criminal possession of a weapon. The
special information did not permit defendant to raise constitutional
challenges to his prior conviction, as he had the right to do before
being sentenced as a second felony offender (see People v Brown, 13
AD3d 667, 669, lv denied 4 NY3d 742, reconsideration denied 4 NY3d
884; see generally CPL 200.60 [3]; 400.21 [7] [b]). We therefore
further modify the judgment by vacating the sentence and remitting the
matter to County Court for resentencing on the counts not otherwise
reduced herein. In light of our determination, we do not reach
defendant’s challenge to the severity of the sentence.




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
