In People v. Tuck (87 NY2d 828), the Court found the evidence of reckless endangerment in the first degree legally sufficient where the defendant placed a loaded, operable handgun to the head of the victim and discharged the weapon, inflicting a serious head wound but endangering no one else.Summary of this case from People v. Atkinson
Argued October 25, 1995
Decided November 29, 1995
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Penny M. Wolfgang, J.
Kevin M. Dillon, District Attorney of Erie County, Buffalo (Donna A. Milling and John J. DeFranks of counsel), for appellant-respondent.
Vincent F. Gugino, Buffalo, Linda S. Reynolds and Barbara J. Davies for respondent-appellant.
The order of the Appellate Division, insofar as appealed from by the People, should be reversed and the case remitted to that Court in accordance with CPL 470.25 (2) (d) and 470.40 (2) (b); insofar as the order is cross-appealed by defendant, it should be affirmed.
While in the home of Antoinette Rhodes on an evening in November 1992, defendant placed a loaded, operable handgun to the head of Samuel Radford, who at the time was engaged in a physical altercation with another individual. Defendant discharged the weapon, inflicting a serious head wound to Radford.
After a nonjury trial, defendant was convicted of reckless endangerment in the first degree (see, Penal Law § 120.25). By guilty plea, defendant was also convicted of assault in the second degree for a separate incident occurring on another date. The Appellate Division modified and vacated the reckless endangerment count. A Judge of this Court granted leave to appeal to the People and to the defendant from the respective aggrieving portions of the Appellate Division order.
On the People's appeal, we reinstate the reckless endangerment count because the proof at trial was legally sufficient to support defendant's conviction under People v Chrysler ( 85 N.Y.2d 413). In that case, this Court held that placing a handgun to the temple of a victim and cocking the weapon "created a grave risk of death under circumstances evincing a depraved mind" under Penal Law § 120.25 (id., at 416). Defendant's various arguments in an effort to distinguish People v Chrysler are unavailing.
The defendant's cross appeal dealing with the voluntariness of his guilty plea as to the other criminal conduct and conviction lacks merit and the Appellate Division order should be affirmed in that respect.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order modified by reinstating defendant's conviction of reckless endangerment in the first degree and remitting to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.