
    The People of the State of New York, Respondent, v Samuel Cabassa, Appellant. The People of the State of New York, Respondent, v Robert Lind, Appellant.
    Argued June 4, 1992;
    decided July 2, 1992
    
      POINTS OF COUNSEL
    
      E. Joshua Rosenkranz and Howard A. Pincus for Samuel Cabassa, appellant.
    I. Mr. Cabassa’s attempted murder convictions should be dismissed because the People failed to prove that he intended to kill four officers, or aided in achieving that end, by merely driving a car at high speeds away from pursuing police officers while a passenger, leaning out the window, fired three shots from considerable distances, hitting no one. (People v Shanklin, 59 AD2d 588; People v Bearden, 290 NY 478; People v Cleague, 22 NY2d 363; People v Rodriguez, 63 AD2d 919; People v Monaco, 14 NY2d 43; People v Fraser, 126 AD2d 740; People v Green, 50 NY2d 891; People v Perniciaro, 58 NY2d 751; People v Yarrell, 146 AD2d 819, 75 NY2d 828; People v Ligouri, 284 NY 309.) II. The trial court should have granted Mr. Cabassa’s requests to charge attempted assault as a lesser included offense of each attempted murder count, because a reasonable juror could readily have believed that Mr. Cabassa intended to injure seriously, but not to kill, when he merely drove the car at high speed as a passenger fired toward the officers from considerable distances and hit no one. (People v Green, 56 NY2d 427; People v Shuman, 37 NY2d 302; People v Martin, 59 NY2d 704; People v Moran, 246 NY 100; People v Butler, 86 AD2d 811, 57 NY2d 664; People v Alamo, 128 AD2d 441; People v Logan, 120 AD2d 359; People v Chmarzewski, 51 AD2d 554; People v Monaco, 14 NY2d 43.) III. Mr. Cabassa’s convictions must be reversed because the trial court permitted him to deliver his summation pro se without conducting any inquiry to ensure that he was knowingly and intelligently waiving his right to counsel. (People v Harris, 85 AD2d 742, 58 NY2d 704; People v Kaltenhach, 60 NY2d 797; Faretta v California, 422 US 806; Carnley v Cochran, 369 US 506; People v Allen, 39 NY2d 916; People v Sawyer, 57 NY2d 12, 459 US 1178; People v McIntyre, 36 NY2d 10; People v Landy, 59 NY2d 369; People v Rodriguez, 
      98 AD2d 961; People v Hazen, 94 AD2d 905.) IV. The prosecutor committed reversible error in eliciting Mr. Cabassa’s numerous traffic violations and arrests that never yielded convictions, tainting the jury’s ability to balance Mr. Cabassa’s account of the chase against the police account. (People v Esquilin, 141 AD2d 838; People v Butler, 138 AD2d 615; People v Malphurs, 111 AD2d 266; People v Cook, 37 NY2d 591; People v Dowdell, 88 AD2d 239; People v Sandoval, 34 NY2d 371; People v Oliver, 80 Misc 2d 905; People v Jackson, 79 Misc 2d 814; People v Yost, 50 AD2d 577; People v Allweiss, 48 NY2d 40.) V. Each of the errors that codefendant Lind raises were even more prejudicial to Mr. Cabassa, both because the evidence of Mr. Cabassa’s guilt was so much more tenuous and because each error more directly implicated his rights.
    
      Grace-M. Healy of the Connecticut Bar, admitted pro hac vice, for Robert Lind, appellant.
    I. The evidence is not sufficient to support any judgment of intentional murder. (People v Bracey, 41 NY2d 296; People v Mahboubian, 74 NY2d 174; People v Di Stefano, 38 NY2d 640; People v Contes, 60 NY2d 620; People v Pena, 50 NY2d 400, 449 US 1087; People v Benzinger, 36 NY2d 29; People v Rodriguez, 63 AD2d 919.) II. The trial court committed reversible error by admitting evidence that there were Halloween masks in the trunk of the Cadillac. (People v Cook, 42 NY2d 204; People v Santarelli, 49 NY2d 241; People v Sorenson, 70 AD2d 892; People v Ely, 68 NY2d 520; People v Ingram, 71 NY2d 474; People v Alvino, 71 NY2d 233; People v Allweiss, 48 NY2d 40.) III. Appellant was denied his constitutional right to a fair trial by the court’s charge on intent and police credibility. (People v Foster, 19 NY2d 150; People v Zimmerman, 46 AD2d 725; People v Williams, 40 AD2d 1023; Sandstrom v Montana, 442 US 510; People v Getch, 50 NY2d 456; People v Gadsden, 80 AD2d 508; People v Aiello, 58 AD2d 875; People v Brown, 109 AD2d 746.) IV. Appellant was deprived of his right to call witnesses in his behalf by the trial court’s refusal to permit him to call the police officer who had interviewed each of the key officers regarding the event leading to appellant’s arrest. (People v Price, 100 Misc 2d 372; United States v Nixon, 418 US 683; People v Le Grand, 67 AD2d 446; People v Gilliam, 45 AD2d 744, 37 NY2d 722; People v McCain, 42 AD2d 866; People v Blowe, 130 AD2d 668; People v Hepburn, 52 AD2d 958.) V. The trial court erred in refusing to charge the jury as to the lesser included offense of attempted assault in the second degree. (People v Glover, 57 NY2d 61.)
    
      
      Robert M. Morgenthau, District Attorney (Patrick Hynes, Mark Dwyer, Beth J. Thomas, Deborah L. Morse and Colin Aldrin Fieman of counsel), for respondent.
    I. The People’s proof of Cabassa’s and Lind’s guilt was not only sufficient as a matter of law, but conclusively established their guilt beyond a reasonable doubt. (People v Benzinger, 36 NY2d 29; People v Contes, 60 NY2d 620; People v Strong, 37 NY2d 568; People v Colon, 113 AD2d 897, 66 NY2d 918; People v Ciola, 136 AD2d 557, 71 NY2d 893; People v Burke, 73 AD2d 627; People v Brathwaite, 63 NY2d 839; People v Windley, 78 AD2d 55; People v Reyes, 82 AD2d 925; United States v Garguilo, 310 F2d 249.) II. The trial court properly refused to submit attempted assault in the second degree where there was no basis in the evidence to conclude that defendants intended only to cause the officers physical injury rather than death. (People v Buckley, 75 NY2d 843; People v Glover, 57 NY2d 61; People v Henderson, 41 NY2d 233; People v Scarborough, 49 NY2d 364; People v Mussenden, 308 NY 558; People v Strong, 37 NY2d 568; People v McBride, 51 AD2d 554; People v Moran, 246 NY 100; People v Butler, 86 AD2d 811, 57 NY2d 664; People v Alamo, 128 AD2d 441.) III. The trial court correctly denied Cabassa’s request that the court order the People to produce Captain Cass, a police witness. (People v Buckley, 75 NY2d 843; People v Zambrano, 114 AD2d 872, 67 NY2d 659; First Intl. Bank v Blankstein & Son, 59 NY2d 436; Pennsylvania v Ritchie, 480 US 39; Washington v Texas, 388 US 14; United States v Valenzuela-Bernal, 458 US 858; People v Gilliam, 45 AD2d 744, 37 NY2d 722; People v McCain, 42 AD2d 866; People v Blowe, 130 AD2d 668.) IV. The court’s evidentiary rulings were entirely correct. (People v Santarelli, 49 NY2d 241; People v Alvino, 71 NY2d 233; People v Fitzgerald, 156 NY 253; People v Williams, 62 NY2d 765; People v Walker, 119 AD2d 521; People v Esquilin, 141 AD2d 838; People v Butler, 138 AD2d 615; People v Cook, 37 NY2d 591; People v Sandoval, 34 NY2d 371.) V. The court correctly granted Cabassa’s application to deliver his own summation. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v Vivenzio, 62 NY2d 775; People v Mitchell, 61 NY2d 580; People v Kaltenbach, 60 NY2d 797; People v Richardson, 4 NY2d 224; People v Rodriguez, 98 AD2d 961, 469 US 818; People v White, 56 NY2d 110; People v Sawyer, 57 NY2d 12; People v Reifsteck, 134 AD2d 876.) VI. Read as a whole, the court’s charge on intent was proper and it adequately advised the jury how to evaluate witness credibility. (People v Flem
      
      ing, 70 NY2d 947; People v Medina, 53 NY2d 951; People v Thomas, 50 NY2d 467; People v Aiello, 58 AD2d 875; Donnelly v DeChristoforo, 416 US 637.)
   OPINION OF THE COURT

Simons, J.

Defendants Lind and Cabassa have been convicted of one count of attempted murder in the first degree, three counts of attempted murder in the second degree and two counts of criminal use of a firearm in the first degree. The charges are based on defendants’ conduct during a high-speed automobile chase when Lind, a passenger in the vehicle driven by Cabassa, fired several gunshots at the pursuing police vehicle. We conclude that defendant Cabassa’s conviction must be reversed and a new trial ordered because of the trial court’s refusal to submit to the jury the offense of attempted assault in the second degree as a lesser included offense of attempted murder. Defendant Lind failed to request the charge down, however, and, finding no other grounds for reversal, we affirm his conviction.

The incident occurred after three plain-clothes officers, patrolling in the Washington Heights section of Manhattan in an unmarked police taxicab, observed a white Cadillac with inoperable taillights and an open trunk lid. It had three occupants, two in the front seat and one in the rear. When the Cadillac stopped at a red light at 158th Street, the officer driving the taxi, Officer Módica, pulled up on the right-hand side of the car and spoke to Lind who was sitting in the front passenger seat. He identified himself by displaying his police department vehicle identification card and his badge while the officer in the front passenger seat of the taxicab turned on the red turret light positioned on the taxi’s dashboard. Speaking to Lind through the open window, Officer Módica directed those in the Cadillac to pull over as soon as the light turned green. Lind nodded his assent.

The occupants of the Cadillac had a short conversation amongst themselves and then, before the traffic light changed, Cabassa accelerated and drove through the red light. A lengthy, high-speed chase ensued in which the vehicles traveled over 100 City blocks and attained speeds between 60 and 70 miles per hour. During the chase, Lind fired several shots toward the pursuing police officers who returned the fire. In response to a radio call for assistance, two uniformed officers attempted to assist in defendants’ apprehension by parking a patrol car across 125th Street to establish a roadblock. Cabassa drove directly toward the roadblock while Lind fired at one of the officers standing next to it. Cabassa then successfully maneuvered the Cadillac around the roadblock and continued, until he eventually lost control of the Cadillac and crashed into a parked car. Defendants were subsequently apprehended and arrested.

On this appeal defendants contend first that there was insufficient evidence to convict them of attempted murder. We conclude, however, that the evidence supports the jury finding that Lind was shooting at the police officers with the intent to kill. He shot at the pursuing cab several times, with at least one of his shots striking the area around the windshield of the police vehicle, and he fired directly at the uniformed officer at the roadblock at 125th Street.

Moreover, the jury could reasonably find that Cabassa shared Lind’s intent to kill. Cabassa and Lind exchanged words before Cabassa accelerated through the red light and, after ignoring the police officers’ direction to pull over, proceeded to drive at a high rate of speed through the City streets to avoid arrest. He continually changed lanes, moving the Cadillac from the right lane to the left and then back to the right, thereby enabling Lind to obtain a direct line of fire toward the pursuing taxicab. Additionally, knowing that Lind had been shooting at the officers in the pursuing taxicab, Cabassa proceeded to drive the Cadillac directly toward the roadblock, where two uniformed officers stood next to the patrol car, permitting Lind to aim and fire his weapon at one of them. Based upon this, the jury could find that defendant Lind’s actions in firing at the officers were not “spontaneous” or unanticipated by Cabassa, but that the defendants together had a "concerted or planned use of the weapon to kill” (cf., People v Monaco, 14 NY2d 43, 45).

Nonetheless, we conclude that defendant Cabassa’s conviction must be reversed and a new trial ordered because of the failure to charge the jury with respect to the lesser included offense of attempted assault in the second degree.

A lesser offense must be submitted to the jury if (1) it is actually a lesser included offense of the greater charge, and (2) the jury is "warranted in finding that the defendant committed the lesser but not the greater crime” (People v Glover, 57 NY2d 61, 64), i.e., there is a "reasonable view of the evidence” to support such a finding (People v Scarborough, 49 NY2d 364, 368; CPL 300.50).

A person commits murder when, acting with the intent to cause the death of another person, he or she causes such death (Penal Law § 125.25 [murder in second degree]; § 125.27 [murder in first degree]). A person commits assault in the second degree when he or she causes serious physical injury to another person with the intent of causing such injury (Penal Law § 120.05 [1]). Manifestly, attempted assault in the second degree is a lesser included offense of each of the attempted murder charges levied against defendants because one who attempts a murder in the first or second degree necessarily attempts an assault in the second degree.

The question, therefore, is whether there was a reasonable view of the evidence to support a finding that defendant Cabassa committed only an attempted assault rather than an attempted murder, i.e., could the evidence be read to find that Lind, with Cabassa’s participation, was shooting at the police officers with the intent, not to kill, but to seriously injure. If it could, the court was required to charge down to attempted assault, second degree: It was warranted in refusing the requested charge only if every possible hypothesis but guilt of the higher crimes was excluded.

The Appellate Division concluded that the evidence could support only two inferences; either defendant Lind shot at the police in order to kill them, or he shot aimlessly to scare the police away. It concluded that the jury could find defendants guilty of attempted murder or it could acquit, but it could not reasonably determine that defendants were not guilty of attempted murder, but were guilty of attempted assault. On this record, however, the jury could reasonably have found that defendants’ purpose in having Lind shoot at the police was to injure the police officers and cause them to terminate the chase. Lind was shooting at a moving target approximately 50 feet away while traveling at high speeds and while both vehicles were frequently changing lanes. The jury could believe that under those circumstances defendants intended to injure rather than to kill. It could have reasonably concluded that Lind was aiming and shooting at the officers and their vehicle in order to distract the taxicab driver so that he would lose control of the car, in order to hit some portion of the car, such as a windshield or tire, to cause a serious accident, or to hit the officers, but only to seriously injure and incapacitate them so that they would abort the pursuit. Moreover, with respect to Cabassa, a reasonable juror could find on this evidence that even if Lind intended to kill, Cabassa did not share that intent. Accordingly, the lesser offense of attempted assault in the second degree should have been submitted to the jury for its consideration (see, People v Ford, 66 NY2d 428; People v Alamo, 128 AD2d 441).

At trial, defendant Cabassa requested, both before and after the charge, that the court instruct the jury on attempted assault in the second degree as a lesser included offense of the attempted murder counts. Although Lind joined in some of Cabassa’s objections to evidence and his requests and exceptions to the charge, he did not join in Cabassa’s requests to charge or in his exception to the court’s failure to charge the lesser included offense of attempted assault second degree. The only logical inference from the absence of a specific request from Lind and his failure to join Cabassa’s two requests to charge down is that "[f]or tactical reasons” he took a "different [position] on the desirability of various instructions to the jury” (People v Buckley, 75 NY2d 843, 846). Consequently, as to defendant Lind, the claim that the court erred in refusing to submit the lesser offense is unpreserved.

Finally, inasmuch as defendant Cabassa is entitled to a new trial at which he may request a similar privilege, we address briefly his contention that reversal also is required because the trial court permitted him to proceed pro se by summing up to the jury without ensuring that he had made a knowing and voluntary waiver of his right to counsel.

Proceeding "pro se” involves appearing for one’s self, without the benefit or participation of counsel. When a defendant elects to proceed pro se, the court is required to conduct a "searching inquiry” to ascertain whether defendant appreciates the risks of self-representation (People v Sawyer, 57 NY2d 12, 21, cert denied, 459 US 1178). When defendant asks only to participate in the defense, however, as Cabassa did when he applied to the court to deliver his own summation, there is no relinquishment of the right to counsel and no determination to represent one’s self. Consequently, there is no need for the court to conduct a searching inquiry to make sure that the defendant is aware of the potential disadvantages of giving up the fundamental right to counsel (see, People v Rodriguez, 98 AD2d 961, 962-963, cert denied 469 US 818; see also, People v Richardson, 4 NY2d 224, cert denied 357 US 943). It is preferable for the trial court to alert defendant of the benefits of permitting a more experienced and objective person to handle the defense in its entirety before a request for limited participation is granted (see, People v Landy, 59 NY2d 369, 377), but there is no legal requirement that the court conduct a searching inquiry to determine whether the defendant appreciates the risks of limited participation.

In this case, the trial court granted Cabassa’s application to give his own summation but it did not relieve defense counsel of the responsibility of representation of his client nor prevent defense counsel from continuing to act as counsel by interjecting objections or supplementing Cabassa’s summation with one of his own. In fact, during Cabassa’s summation to the jury, his attorney did interject an objection. Accordingly, we find no error in the court’s procedure.

Defendants also contend that the trial court incorrectly charged the jury with respect to intent. We conclude, however, that the charge, read as a whole, adequately instructed the jury on the subject (see, People v Green, 50 NY2d 891, 893, cert denied 449 US 957).

We have considered defendants’ remaining contentions and find them to be without merit.

Accordingly, the order of the Appellate Division, with respect to defendant Cabassa, should be reversed and a new trial ordered, and with respect to Lind, affirmed.

Kaye, J.

(concurring in Cabassa and dissenting in Lind). The Court reverses and orders a new trial as to defendant Cabassa, based on erroneous refusal to submit a lesser included offense to the jury, and for lack of preservation denies that same relief to defendant Lind, with whom Cabassa was jointly tried. I believe there should be a reversal and new trial as to both codefendants.

I agree that the trial court committed reversible error in failing to submit to the jury the lesser included offense of attempted assault in the second degree, as requested by defendant Cabassa. As the Court acknowledges, the jury could have reasonably concluded that Lind, in shooting at the police officers, intended to seriously injure but not to kill.

Because the evidence is susceptible to that interpretation, however, the jury charge on intent also mandates reversal. Tellingly, the Court does not hold that the charge was proper, but merely that it was "adequate” when read as a whole. To the contrary, the charge required the jury to convict even if it found that Lind had no intent to kill, but only knowledge that death would result from his acts. This charge significantly reduced the People’s burden and deprived Lind of a fair trial.

The trial court first properly instructed the jury that a person acts intentionally with respect to a result or to conduct proscribed by statute when there is a conscious objective to cause such a result or to engage in such conduct (see, Penal Law § 15.05 [1]; People v Smith, 79 NY2d 309; 1 CJI[NY] 9.31 [1983]). The court then stated that the jury should not confuse motive with intent, and redefined intent, this time in the alternative:

"[Intent] denotes a desire to effect a result. If a person performs a voluntary act with the desire to effect a result he is said in law to have intended that result. Further, though he might have no desire to effect the result, if he does the act under circumstances known to him which make it substantially certain that the result will follow, the law charges him with intent to accomplish that result. ” (Emphasis added.)

The court further explained that intent is a mental operation that must be inferred from the facts and circumstances surrounding the crime, and again urged the jury not to confuse motive with intent. Finally, the court charged that premeditation or deliberation is not a prerequisite of intent.

The Penal Law distinguishes between intent and knowledge. Intent is the actor’s conscious aim or objective in performing certain acts, while knowledge is an awareness that a particular element of a crime is satisfied (People v Steinberg, 79 NY2d 673, 680-681). A person may act intentionally without having knowledge that a result will occur (id.), and conversely, a person may have knowledge without having intent (People v Kaplan, 76 NY2d 140). The burden is on the prosecution to prove, beyond a reasonable doubt, whatever mental culpability element is set forth in the statute defendant is charged with violating.

Although the jury may infer intent from knowledge, there is no requirement that it do so. Contrary to the trial court’s charge, if defendant had "no desire” to kill, the law does not "charge” him with intent to kill even if there is "substantial^ certaint[y]” that death will occur (compare, Sandstrom v Montana, 442 US 510 [mandatory presumption that a person intends the ordinary consequences of his or her acts unconstitutional]; People v Getch, 50 NY2d 456 [same]).

Reading the charge as a whole does not mitigate the court’s error. Indeed, having defined intent alternatively as (1) conscious objective or (2) substantial certainty of result, the court’s error was magnified by the remainder of the charge, where the court simply used the word "intent” as had been previously defined.

The error was prejudicial because, as the majority observes, the jury could have found that Lind (like Cabassa) intended to seriously injure but not to kill. Under the court’s charge, however, even if the jury found that Lind in fact intended only to injure, it was required to convict him of attempted intentional murder if it concluded that Lind knew death was substantially certain to result from his conduct. Thus, Lind should also be entitled to a new trial.

I further disagree with the Court’s conclusions regarding Cabassa’s pro se summation. When counsel informed the court that Cabassa wished to proceed pro se in summation, the court expressed reservations about Cabassa’s intelligence and stated his belief that Cabassa was "making a mistake.” Nevertheless, the court acceded to Cabassa’s request without making any inquiry of him other than to elicit his agreement to confine his argument to the evidence.

Before permitting a defendant to proceed pro se, the court should make a searching inquiry to assure that defendant appreciates the dangers and disadvantages of self-representation (People v Sawyer, 57 NY2d 12, 21, cert denied 459 US 1178). Thus the question here is whether there should be a different rule when defendant wishes to deliver a summation and regular counsel is on "standby.” In my view, this question should be answered in the negative.

In People v Landy (59 NY2d 369), this Court rejected defendant’s claim that his pro se summation — with counsel present throughout — was a basis for reversal, unanimously holding that the trial court "sufficiently complied with the rules requiring that it inquire of the defendant and obtain defendant’s knowing and intelligent waiver of the assistance of counsel” (id., at 377). Thus, Landy did not hold that the searching inquiry was merely "preferable” when defendant wishes to give a summation with counsel present, as the majority suggests (majority opn, at 731). To the contrary, Landy implicitly held that the rules were fully applicable in this context.

No case decided by this Court supports the distinction the Court draws today between defendants who only "participate” in their own defense and those assuming full responsibility. Instead, the Court relies on People v Rodriguez (98 AD2d 961, cert denied 469 US 818) — an Appellate Division memorandum that in turn relied on a single-Justice concurrence in another Appellate Division case (id., at 962-963, citing People v Hazen, 94 AD2d 905, 908 [Mahoney, P. J., concurring]). Rodriguez is distinguishable in any event because there, both defense counsel and defendant gave summations. People v Richardson (4 NY2d 224) is also inapposite — the case held only that a represented defendant does not have an absolute right to give a summation.

I believe that People v Sawyer (57 NY2d 12, supra) is more to the point. There, we not only reaffirmed the trial court’s duty to make a searching inquiry before permitting a defendant to proceed pro se, but also held that it would be permissible to appoint standby counsel to assist defendant should the need arise (57 NY2d, at 22). The Court did not suggest that the requisite inquiry of defendant would be unnecessary if there was standby counsel, and the same should hold true here. (See also, United States v Turnbull, 888 F2d 636, 638 [9th Cir], cert denied — US —, 111 S Ct 78 [trial court "may allow 'hybrid representation,’ in which the accused assumes some of the lawyer’s functions, under certain circumstances. If the defendant assumes any of the 'core functions’ of the lawyer, however, the hybrid scheme is acceptable only if the defendant has voluntarily waived counsel”].)

In People v Cabassa: Order reversed and a new trial ordered.

Chief Judge Wachtler and Judges Titone, Hancock, Jr., and Bellacosa concur with Judge Simons; Judge Kaye concurs in result in a separate opinion.

In People v Lind: Order affirmed.

Chief Judge Wachtler and Judges Titone, Hancock, Jr., and Bellacosa concur with Judge Simons; Judge Kaye dissents and votes to reverse in a separate opinion.  