The People, Respondent,v.Earl Bell, Jr., Appellant.BriefN.Y.Mar 20, 2013OFFICE OF THE ORANGE COUNTY DISTRICT ATTORNEY LOCAL CRIMINAL COURT UNIT 18 SEWARD AVENUE, MIDDLETOWN, NEW YORK 10940 TEL. 8456153640 FAX 845 346 1189 wwworangecou ntygov.com — \ ), FRANCIS D. PHILLIPS II District Attorney CtVyQ RICHARD E RUGGERI Chief Assistant District Attorney February 15, 2013 Hon. Andrew W. Klein Chief Clerk and Legal Counsel New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: People v Earl Bell, Jr. Orange County Indictment 2007-805 Dear Mr. Klein: By permission of a Judge of this Court, Earl Bell, Jr. appeals from a decision and order of the Appellate Division, Second Department dated March 15, 2011, which affirmed a judgment of the County Court, Orange County (Freehill, J.) rendered on July 28, 2008 after ofjury trial and convicting him of murder in the second degree (depraved indifference murder), murder in the second degree (felony murder), kidnapping in the first degree, and tampering with physical evidence. On July 28, 2008, the Court sentenced defendant to concurrent indeterminate terms of imprisonment of twenty-five years to life and to a consecutive indeterminate term of imprisonment of one and one-third to four years (People v Bell, 82 AD3d 997, lv denied, 16 NY3d 893, lv denied, 17 NY3d 792 [201 1], ly granted, 20 NY3d 931 ). Defendant is currently serving that sentence. Co-defendant Monroe Bussey was similarly convicted of the same charges. On May 3, 2012, this Court modified Bussey’s judgment by reducing his conviction for depraved indifference murder to manslaughter in the second degree, and as modified, affirmed the judgment and remitted the matter back to the trial court for resentencing on the manslaughter conviction (People v Bussey, 19 NY3d 231 ). Co-defendant Michael Thomas pleaded guilty to murder in the second degree and is serving a state prison sentence. On January 11, 2103, this Court ordered that defendant’s appeal be briefed sua sponte pursuant to Rule 500.11. Respondent’s brief is submitted in accordance with the Court’s directive. The background facts are easily stated. On September 4, 2007, the badly beaten body of twenty-one year-old Jeffrey Beary was found dead in the Walikill Creek located in the City of Poughkeepsie, New York. His naked body was found wrapped in a blanket that had been secured around his head with duct tape. The same day, the police confirmed Beary’ s identity. Two days later, on September 6, 2007, an eyewitness reported that she had observed defendant, and two other men, who were later identified as Monroe Bussey and Michael Thomas, severely beat a young man, who was later identified as Beary, in the alley and backyard of defendant’s residence in the City of Newburgh, Orange County, New York. On September 6, 2007, the police executed a search warrant at defendant’s residence and recovered blood from inside the stairwell and walls that led to defendant’s second floor apartment. Defendant was arrested at that time. The next day, on September 7, 2007, the police found a ring on the ground that had been in Beary’s possession, and the police also recovered a pair of boxer shorts from a KFC bucket that had been thrown in a garbage can in the front of the residence. Also, on September 7, 2007, Monroe Bussey was arrested. During separate searches, the police recovered marihuana and drug paraphernalia from Bussey’s apartment, and carpeting, molding, and a basketball from the trunk of Bussey’s car. On September 9, 2007, the third co-defendant, Michael Thomas, was also arrested and charged in connection Jeffrey Beary’s murder. Subsequent testing of the items that were recovered from the stairway confirmed the presence of Monroe Bussey’s blood on the stairway and walls, and the presence of Beary’s blood on the carpeting and molding from Bussey’s car trunk. Expert medical evidence also established that Beary died as a result of multiple instances of blunt force trauma to his head and body and that Beary had also suffered fractured ribs and a punctured lung. Additionally, the evidence established that Beary had survived the initial beating and that he was still alive at the point when his head was wrapped in -2- the blanket and when he was placed in the car and taken to Poughkeepsie and that the victim had aspirated on his vomit. Finally, cell phone records and cell site information obtained for Bell’s cell phone showed that the three co-defendants were in contact with each other prior to the victim’s beating and that Bell was in the Poughkeepsie area at 11:32 p.m. on September 3, 2007. Defendant’s trial commenced on April 30, 2008. In support of his motion for a trial order of dismissal, defendant argued, in relevant part, that the evidence was legally insufficient to show that he had a depraved indifferent mindset. He also argued that the evidence was insufficient to establish a kidnapping, and that, in any event, the merger doctrine barred his convictions for kidnapping in the first degree and felony murder. On May 22, 2008 the jury returned a verdict and convicted defendant as noted above, while acquitting him of intentional murder. On direct appeal, defendant challenged the legal sufficiency of the evidence, a variety of legal and evidentiary rulings, the legality of his arrest, and the length of his sentence. The Appellate Division affirmed defendant’s judgment on March 15, 2011 (People v Bell, 82 AD3d 997). On appeal to this Court, defendant renews his legal sufficiency challenge to his depraved indifference murder conviction as well as his claims that his convictions for felony murder and first degree kidnapping are barred under the merger doctrine. At the outset, defendant’s legal sufficiency challenge is not properly before the Court. In his leave application, defendant admitted that the basis of his current appeal was not raised in the Appellate Division. Additionally, in the trial court, defendant’s motion to dismiss was primarily aimed at the sufficiency of the evidence of his involvement in the killing and kidnapping. Only in the most cursory sense did defendant contend that the evidence was insufficient to show that he had a “proper mindset” to establish depraved indifference. Defendant never articulated what he meant by that generalization, he cited no caselaw, and he also never specifically claimed that the People failed to demonstrate that he evinced an “utter disregard for the victim’s life to the extent that he did not care whether the victim was killed” (People v Bussey, 19 NY3d 231). Consequently, as defendant presents his arguments in light of Bussey, his principal legal sufficiency claim is unpreserved for appeal (see People v Gray, 86 NY2d 10 ). -3- In addition, from a procedural standpoint, his challenge is further complicated by the arguments that he actually raised in the Appellate Division. Most importantly, defendant expressly conceded that his acts appeared “to be indifferent to human life,” but argued instead that there were “no acts in the record which would establish that [he] recklessly engaged in conduct which created a grave and unjustifiable risk of death to another” (Appellant’s brief at 64). Of course, on nearly identical trial evidence, in Bussey, this Court found exactly the opposite, holding that a reasonable view of the evidence supported a finding of recklessness to support a conviction for manslaughter in the second degree but not depraved indifference. Having conceded the issue of indifference in the Appellate Division, defendant effectively waived or forfeited further review of that claim (see People v Goldberg, 16 AD3d 591 [2d Dept 2005]; People v Psilakis, 148 AD2d 475 [2d Dept 1989]). Because this Court lacks the inherent authority to correct an error in the interest ofjustice, defendant’s legal sufficiency challenge should be denied for these reasons alone (çç People v Gray, 86 NY2d 10; see also People v Becoats, 17 NY3d 643 ; People v Ventura, 17 NY3d 675 [201 1]). Were the Court to reject the People’s procedural arguments, however much the People disagree with the Court’s rational in Bussey, the People would concede that in light of the Bussey decision, the evidence is insufficient to support defendant’s conviction for depraved indifference murder. However, as in Bussey, a reasonable view of the evidence supports the jury’s finding that the defendant acted recklessly in causing the victim’s death. Accordingly, defendant’s depraved indifference murder conviction under the second count of the indictment should be reduced to manslaughter in the second degree, and that count should be remitted to the County Court for resentencing (see People v Bussey, 19 NY3d at 236; People v Atkinson, 7 NY3d 765, 766-767 ). Finally, for the same reasons that the Court observed in Bussey, the merger doctrine does not come into play. As the Court found, “the beating of the victim, and his subsequent death, were discrete and distinct acts separate from the taking of the victim and his asporation to the creek” (People v Bussey, 19 NY3d at 238 citing People v Black, 18 AD2d 719, 720 ; People v Levy, 15 NY2d 159, 164 ). Accordingly, defendant’s convictions for felony murder and for kidnapping in the first degree should be affirmed. -4- In sum, the decision and order of the Appellate Division should be affirmed. In the alternative, the Appellate Division’s decision and order should be modified to the extent that defendant’s conviction for depraved indifference murder should be reduced to manslaughter in the second degree and that count should be remitted to the County Court for resentencing, and as modified, affirmed. Very truly yours, FRANCIS D. PHILLIPS, II DISTRICT ATORNEY ANDREWR KASS Executive Assistant District Attorney cc: Alex Smith, Esq. -5- AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) SS: COUNTY OF ORANGE) CAROL M. BARNES, being duly sworn, deposes and says: that on the 15th day of FEBRUARY, 2013, she served three (3) copies of RESPONDENT’S BRIEF filed in The PeoDle of the State of New York v. EARL BELL, JR., Orange County Indictment No. 2007-805, upon ALEX SMITH, ESQ., 6 North Street, Middletown, New York 10940 in a securely postpaid wrapper by depositing same in a Post Office Box regularly maintained by the United States Government, Middletown, New York. Deponent is over the age of 18 years of age. CAROL M. BARNES Sworn to before me this 15th day of February, 2013. I if I Notary / / iYcrk Ccii i’ ‘, D___.