People v. Ketter

Summary

The New York Appellate Division, Third Department, reversed the defendant's conviction for attempted murder in the first degree because the evidence did not establish the statutory course-of-conduct element for torture murder. The court affirmed the remaining convictions for attempted murder in the second degree and two counts of first-degree assault, holding that the evidence sufficiently established identity, that the defendant forfeited confrontation rights by causing a witness's unavailability, and that counsel was effective. The court also affirmed the remaining aggregate sentence of 50 years' imprisonment.

Holdings

1. The conviction was against the weight of the evidence because the People failed to prove the course-of-conduct element of torture murder. Dousing victim A with accelerant did not, on the particular facts, establish extreme physical pain, and setting her on fire, standing alone, was a single act rather than a course of conduct.
2. The evidence was legally sufficient to establish defendant's identity as the perpetrator of the incidents involving both victims, and the remaining convictions were supported by the weight of the evidence.
3. The People established by clear and convincing evidence that defendant, with assistance from others, engaged in misconduct that caused victim B's unavailability, thereby forfeiting his confrontation right and permitting admission of her grand jury testimony.
4. Defendant received meaningful representation and failed to establish ineffective assistance.
5. Counsel was not ineffective for failing to request an accomplice-as-a-matter-of-law instruction for the bystander because the trial evidence did not support the instruction.
6. The sentences imposed for attempted murder in the second degree and the two assault convictions were not harsh or excessive and were wholly warranted.

Questions Presented

1. Whether defendant's conviction for attempted murder in the first degree was against the weight of the evidence because the People failed to prove that he engaged in a course of conduct intended to inflict and inflicting extreme physical pain.
2. Whether the evidence was legally sufficient and supported the weight of the evidence as to defendant's identity as the perpetrator of the incidents involving victims A and B.
3. Whether the People established by clear and convincing evidence that defendant caused victim B's unavailability, thereby forfeiting his confrontation right and permitting admission of her grand jury testimony.
4. Whether defendant received ineffective assistance of counsel.
5. Whether counsel was ineffective for failing to request an accomplice-as-a-matter-of-law jury instruction concerning the bystander.
6. Whether the sentences imposed on the remaining convictions were harsh and excessive.

Disposition

other