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

963
KA 11-00702
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

PERNELL A. FLANDERS, DEFENDANT-APPELLANT.


JOHN J. RASPANTE, UTICA, FOR DEFENDANT-APPELLANT.

PERNELL A. FLANDERS, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered January 11, 2011. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the second
degree, assault in the first degree, criminal possession of a weapon
in the second degree and reckless endangerment in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, attempted murder in the second
degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree
(§ 120.10 [1]) and reckless endangerment in the first degree (§
120.25). The evidence at trial established that, on the date in
question, defendant and a passenger in his vehicle approached the
victim and his fiancée. A physical altercation ensued during which
defendant struck the victim with a .380 caliber semi-automatic pistol.
Defendant then shot the pistol at the victim and in the vicinity of
the victim’s fiancée. Defendant returned to his vehicle to obtain a
second firearm, i.e., a .22 caliber rifle, which he then used to shoot
at the victim, in the vicinity of the victim’s fiancée. The victim
sustained multiple gunshot wounds to the neck, chin, shoulder and leg.
With respect to the assault and reckless endangerment charges, the
indictment alleged that defendant committed those offenses with “a
.380 semi-automatic pistol and a .22 rifle” (emphasis added).

     During its charge, County Court instructed the jury that it was
alleged that defendant committed assault in the first degree by
intentionally injuring the victim with a “380 semi-automatic pistol
and a 22 caliber rifle” (emphasis added). The court further
instructed the jury that it was alleged that defendant committed
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                                                         KA 11-00702

reckless endangerment in the first degree by firing “a 380 semi-
automatic pistol and a 22 rifle in the direction of [the victim’s
fiancée]” (emphasis added). The jurors sent a note asking if they
must believe that both firearms were involved in order to find
defendant guilty of the assault and reckless endangerment charges.
The court instructed the jury that it “must be proven to your
satisfaction beyond a reasonable doubt, that either of the weapons
were involved or both, as long as you find that there was a deadly
weapon involved.” The jury thereafter returned a verdict of guilty on
all counts charged in the indictment.

     Defendant now contends that the court’s instruction to the jury
constructively amended the indictment, rendering it duplicitous. We
reject that contention. It is well established that, “ ‘[w]here an
offense may be committed by doing any one of several things, the
indictment may, in a single count, group them together and charge the
defendant with having committed them all, and a conviction may be had
on proof of the commission of any one of the things, without proof of
the commission of the others’ ” (People v Charles, 61 NY2d 321, 327-
328). Contrary to the position of the dissent, we conclude that the
evidence at trial established that the multiple shots fired from two
separate firearms “constitute[d] a single uninterrupted assault rather
than a series of distinct criminal acts . . . , and the assault
‘occurred over a short time frame, without apparent abeyance, and was
triggered by a single incident of anger’ ” (People v Snyder, 100 AD3d
1367, 1367, lv denied 21 NY3d 1010, quoting People v Hines, 39 AD3d
968, 969-970, lv denied 9 NY3d 876; cf. People v Bauman, 12 NY3d 152,
155-156; People v Casado, 99 AD3d 1208, 1209, lv denied 20 NY3d 985;
see generally People v Alonzo, 16 NY3d 267, 270). “The fact that more
than one dangerous instrument allegedly was used by the defendant[],
and more than one [shot] was [fired] causing the [victim] several
injuries, does not transform this single criminal incident into
multiple assaults or acts of [reckless endangerment] which must be
charged by separate counts” (People v Kaid, 43 AD3d 1077, 1080; cf.
People v Negron, 229 AD2d 340, 340-341). We respectfully disagree
with the position of the dissent that there were separate impulses
with an abeyance between them. Rather, the evidence established that
defendant assaulted the victim and his fiancée in an attempt to seek
revenge for the fiancée’s alleged assault on defendant’s sister.
There was one motive and one impulse: to seek revenge. We see no
distinction between a situation in which an assaulting defendant takes
the time to reload one weapon and one in which the assaulting
defendant takes the time to obtain a second weapon with the single
impulse of continuing the ongoing assault.

     With respect to the count of reckless endangerment in the first
degree, the conduct encompassed by that count was the act of
endangering the life of the victim’s fiancée, who was in the vicinity
of the victim the entire time defendant was shooting at the victim.
“Where . . . a crime by its nature as defined in the Penal Law may be
committed either by one act or by multiple acts and can be
characterized as a continuing offense over time, the indictment may
charge the continuing offense in a single count” (People v First
Meridian Planning Corp., 86 NY2d 608, 615-616). Under the
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                                                         KA 11-00702

circumstances of this case, the crime of reckless endangerment
“involved a continuing offense” and could therefore encompass multiple
acts in one count without being duplicitous (People v Hernandez, 235
AD2d 367, 368, lv denied 89 NY2d 1012). In our view, the fact that
the multiple shots were fired from two separate firearms did not
transform this continuing offense into two separate offenses. We
disagree with the dissent’s assumption that the fiancée was
“potentially out of harm’s way” when she sought refuge in a vehicle
during the barrage of gunshots inasmuch as the vehicle was still in
the vicinity of the gunshots. “[R]eckless endangerment is a conduct-
specific . . . crime,” and here the conduct underlying that count of
the indictment was the firing of multiple gunshots in the vicinity of
the fiancée (People v Estella, 107 AD3d 1029, 1032, lv denied 21 NY3d
1042; cf. People v Dann, 17 AD3d 1152, 1153-1154, lv denied 5 NY3d
761). We thus conclude that the indictment was not rendered
duplicitous by the court’s instruction that the jury could find
defendant guilty of the assault and reckless endangerment charges if
it found that defendant used either firearm or both.

     We reject the view of the dissent that “ ‘there were two distinct
shooting incidents’ ” (quoting People v Boykins, 85 AD3d 1554, 1555,
lv denied 17 NY3d 814). Although the published decision in Boykins
does not address the particular facts of the crimes, “[w]e can and do
take judicial notice of the record on appeal” in that case (People v
Hill, 30 AD2d 976, 976; see People v Crawford, 55 AD3d 1335, 1337, lv
denied 11 NY3d 896). In Boykins, the defendant was charged with one
count of attempted murder, but the evidence established that there
were two distinct shooting incidents directed at the victim. The
first occurred when the defendant and the codefendant first arrived at
the victim’s residence. At that point the victim was shot in the
stomach area. The defendant and the codefendant left the residence,
and another resident of the home locked the door behind them. At some
time thereafter, either the defendant or the codefendant kicked open
the door and shot the victim twice in the face. Here, contrary to the
factual scenario in Boykins, there was no cessation or suspension in
the criminal activity other than the time it took defendant to obtain
another loaded firearm.

     Inasmuch as we conclude that the counts of the indictment were
not rendered duplicitous by the court’s instructions, we reject
defendant’s contention that he was denied effective assistance of
counsel based on defense counsel’s failure to seek dismissal of the
allegedly duplicitous counts of the indictment (see People v Stultz, 2
NY3d 277, 287, rearg denied 3 NY3d 702; People v Harris, 97 AD3d 1111,
1111-1112, lv denied 19 NY3d 1026; see also People v Brown, 82 AD3d
1698, 1701, lv denied 17 NY3d 792).

     Contrary to defendant’s further contention, we conclude that the
shell casings were properly admitted in evidence. “ ‘The testimony
presented at the trial sufficiently established the authenticity of
that evidence through reasonable assurances of identity and unchanged
condition’ . . . , and any irregularities in the chain of custody went
to the weight of the evidence rather than its admissibility” (People v
Washington, 39 AD3d 1228, 1230, lv denied 9 NY3d 870; see generally
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                                                         KA 11-00702

People v Julian, 41 NY2d 340, 342-343).

     We conclude that the sentence is not unduly harsh or severe.
Finally, we note that the certificate of conviction erroneously states
that defendant was convicted of attempted murder in the second degree
under Penal Law § 125.25 (2), and it must therefore be amended to
reflect that he was convicted under Penal Law § 125.25 (1) (see
generally People v Saxton, 32 AD3d 1286, 1286).

     All concur except SCONIERS, J., who dissents and votes to modify
in accordance with the following Memorandum: I respectfully dissent
in part because I disagree with the majority that the assault and
reckless endangerment counts in the indictment were not rendered
duplicitous based on the evidence or by County Court’s charge in
response to a jury note. I would therefore modify the judgment by
reversing the conviction of assault and reckless endangerment and
dismissing the second and fourth counts of the indictment with leave
to re-present any appropriate charges under those counts to another
grand jury (see generally People v Filer, 97 AD3d 1095, 1096, lv
denied 19 NY3d 1025). In view of my conclusion, I do not reach
defendant’s related contention concerning the denial of effective
assistance of counsel.

     The indictment alleged, inter alia, that defendant committed
assault in the first degree (Penal Law § 120.10 [1]) and reckless
endangerment in the first degree (§ 120.25) with “a .380 semi-
automatic pistol and a .22 rifle,” and the jury was instructed
accordingly. During deliberations, the jurors sent a note that asked,
with respect to both the assault and reckless endangerment counts,
“must we believe both guns were involved and fired by the defendant.”
The court, in discussing the note with counsel, stated that the
indictment alleged assault with a deadly weapon and not deadly
weapons. As a result, the court subsequently instructed the jury that
they could find that “either of the weapons were involved or both, as
long as you find that there was a deadly weapon involved.”

     With respect to the assault count, this was not a case of a
“single, uninterrupted criminal act” (People v Alonzo, 16 NY3d 267,
270); rather, defendant engaged in “two distinct shooting incidents
that may constitute the crime of [assault]” with two separate weapons,
the first of which was interrupted when he returned to his vehicle to
retrieve a rifle (People v Boykins, 85 AD3d 1554, 1555, lv denied 17
NY3d 814; see generally People v Casado, 99 AD3d 1208, 1209, lv denied
20 NY3d 985). It is the separate “impulses,” not the time interval
between the acts, that is dispositive in this case (see People v
Okafore, 72 NY2d 81, 87-88). Here, defendant used the pistol during
the course of a fist fight between the victim, defendant’s passenger,
and defendant, after the victim began to get the upper hand. The
victim’s fiancée was pushing him back toward their sports utility
vehicle (SUV) when defendant fired the last shot from the pistol.
Following that initial altercation, after any perceived threat posed
by the victim had seemingly subsided, and after defendant stated that
he was not afraid to use the pistol, defendant returned to his
vehicle, retrieved a rifle from the back seat, and began firing in an
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                                                         KA 11-00702

apparent attempt to end the victim’s life (see Boykins, 85 AD3d at
1555). Defendant acted on those separate impulses with an “abeyance”
between them (People v Hines, 39 AD3d 968, 970, lv denied 9 NY3d 876).
Given the evidence at trial and the court’s instruction in response to
the jury note about the two weapons, the assault count was rendered
duplicitous. “In addition, because the trial evidence establishes two
distinct acts that may constitute [assault in the first degree], ‘[i]t
is impossible to ascertain . . . whether different jurors convicted
defendant based on different acts’ ” (Boykins, 85 AD3d at 1555).

     Reckless endangerment can be a “continuing offense” (People v
Hernandez, 235 AD2d 367, 368, lv denied 89 NY2d 1012) and, for
reckless endangerment in the first degree, “the element of depravity
can be alleged by establishing that defendant engaged in a course of
conduct over a period of time” (People v Bauman, 12 NY3d 152, 155).
Nevertheless, the conduct that allegedly created a grave risk of death
must be specific enough to ensure a unanimous jury verdict (see id.;
People v Estella, 107 AD3d 1029, 1031-1032, lv denied 21 NY3d 1042).
Here, the testimony was that the victim’s fiancée was in front of the
victim when defendant fired the pistol but was able to get into the
SUV, and potentially out of harm’s way, when defendant retrieved and
fired the rifle. There was one count and one victim, but two acts,
with a seemingly greater risk of death involved with the use of the
pistol. Given the court’s response to the jury note, it is not
possible to know whether the jurors, individually or collectively,
based their verdict upon the use of the pistol, the rifle, or both.
Based on defendant’s break to retrieve the rifle, the fiancée’s
coinciding change of location, and the court’s amendment of the
indictment (see Bauman, 12 NY3d at 155), and “because of the danger
that [the] jury . . . vote[d] to convict on a count without having
reached a unanimous verdict” (People v First Meridian Planning Corp.,
86 NY2d 608, 615), the reckless endangerment count was rendered
duplicitous.

     Finally, the court failed to mitigate the danger that defendant
was convicted on a less than unanimous verdict by neglecting to
instruct the jury that they all must agree on the act or acts by which
defendant injured the victim with a deadly weapon and created a grave
risk of death to the victim’s fiancée (see generally People v
Bradford, 61 AD3d 1419, 1420-1421, affd 15 NY3d 329; First Meridian
Planning Corp., 86 NY2d at 616).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
