| People v Jones |
| 2009 NY Slip Op 01368 [59 AD3d 864] |
| February 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Edward D.Jones, Appellant. |
—[*1] Louise K. Sira, District Attorney, Johnstown, for respondent.
Kavanagh, J. Appeal from a judgment of the County Court of Fulton County (Giardino, J.),rendered March 17, 2008, upon a verdict convicting defendant of the crimes of manslaughter inthe second degree, assault in the second degree and criminal possession of a weapon in thefourth degree.
On the evening of March 1, 2007, defendant and David Lamphear were involved in aphysical altercation during which defendant stabbed Lamphear in the abdomen with a pocketknife. Two weeks later, Lamphear died of complications that stemmed from the injury hesustained in the stabbing. Defendant was ultimately charged in a four-count indictment withmanslaughter in the first and second degrees, assault in the first degree and criminal possessionof a weapon in the fourth degree. After trial, defendant was convicted of manslaughter in thesecond degree, assault in the first degree and criminal possession of a weapon in the fourthdegree. County Court reduced the assault conviction to assault in the second degree[FN*]and [*2]sentenced defendant to concurrent prison terms of7½ to 15 years on the manslaughter conviction and seven years on the assault conviction,with five years postrelease supervision, and time served on the criminal possession of weaponconviction. Defendant now appeals.
Defendant claims that his use of deadly physical force was justified because he was acting inself-defense when he stabbed Lamphear once in the abdomen with a pocket knife and the jury'srejection of this defense was against the weight of the evidence. We agree and because, on theevidence presented, the People have failed to meet their burden and prove beyond a reasonabledoubt that defendant did not act in self-defense, we reverse defendant's convictions formanslaughter and assault and dismiss those counts of the indictment.
Lamphear and defendant had what all acknowledged to be an acrimonious relationship lacedwith racial overtones. Much of this animosity stemmed from the fact that defendant lived withHolly Walker, a woman with whom Lamphear had a prior relationship and the mother of one ofLamphear's children. According to Walker, Lamphear repeatedly expressed his dislike fordefendant and had grown increasingly resentful of the fact that Walker lived with defendant andthat her children had developed a positive relationship with him.
On the night in question, defendant agreed to drive Walker and her children to Lamphear'sresidence so that the children could be with him pursuant to a visitation schedule. According toWalker, while they were en route, Lamphear called her on a cell phone to complain that theywere late and uttered threats directed at defendant if the children were not delivered asscheduled. Walker testified that Lamphear stated during the call that he had friends who were"waiting" and would "jump" defendant upon his arrival. When defendant and Walker did arrive,Lamphear approached them with a pipe in hand and demanded that defendant get out of thevehicle. According to Walker's testimony, Lamphear put the pipe down and, after defendantexited the vehicle, Lamphear suddenly and without provocation, "punched [defendant] in theface." Walker intervened and in the struggle that followed, Lamphear fell to the ground. At thatpoint, according to Walker, Lamphear uttered a racial epithet, struck Walker in the face with hisfist and picked up a wooden board that he used to hit defendant in the back of the head. Walkerthen fled to the house and defendant backed away from Lamphear towards his vehicle. Lamphearfollowed and, according to defendant, continued to brandish the board stating, "I'm going to killyou, n*** *r." Again, Lamphear attacked defendant with the board and this time struck a blowthat fractured defendant's arm. As defendant reached the driver's side of the vehicle, Lamphearcontinued to advance toward him, brandishing the board, stating, "I'm going to get you now,n****r." As Lamphear tried to hit defendant with the board for a third time, defendant took out apocket knife, swung it at Lamphear and struck him once, causing a two centimeter wound in theabdomen. Defendant then got into his vehicle and waited for Walker to join him. As Walker gotinto the vehicle, Lamphear took the board and smashed it through the driver's side window.Defendant then drove from the scene and, using 911, reported the incident to the police.
A weight of the evidence review requires us to independently review the evidence and, if adifferent verdict would not have been unreasonable, to " 'weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Richardson, 55 AD3d 934, 938 [2008]). Upon doingso here, we conclude that viewing the evidence as an integrated whole, the People have failed toestablish beyond a reasonable doubt that defendant was not justified in his [*3]use of deadly physical force against Lamphear (see People vMcManus, 67 NY2d 541, 546-547 [1986]; Matter of Ismael S., 213 AD2d 169, 172[1995] [adjudication that child was a juvenile delinquent was reversed where the People "failedto disprove, beyond a reasonable doubt, that the respondent was justified in using deadlyphysical force"]; People v Reeder, 209 AD2d 551, 551-552 [1994], lv denied 85NY2d 913 [1995]).
Without question, defendant used deadly physical force or "physical force which, under thecircumstances in which it is used, is readily capable of causing death or other serious physicalinjury" when he stabbed Lamphear with the pocket knife (Penal Law § 10.00 [11]).However, deadly physical force is justified if, under the circumstances presented, the actorcannot retreat "with complete personal safety, to oneself and others" and "reasonably believesthat such other person is using or about to use deadly physical force" against him or her (PenalLaw § 35.15 [2] [a]; People vRyan, 55 AD3d 960, 963 [2008]; People v Zindle, 48 AD3d 971, 973 [2008], lv denied 10NY3d 846 [2008]; People vBrooks, 32 AD3d 616, 617 [2006], lv denied 8 NY3d 844 [2007]; People v Steele, 19 AD3d 175,176 [2005], lv denied 5 NY3d 795 [2005]).
While much of defendant's testimony at trial was the subject of vigorous dispute, there werefacts which go to the core of his claim of justification that were essentially uncontradicted andthat established that, before defendant had taken out his knife, he was the victim of a feloniousassault perpetrated by Lamphear. For example, no evidence was presented to counter defendant'sand Walker's testimony that Lamphear was the initial aggressor in this attack. In addition, it isuncontroverted that before defendant ever took out the knife, Lamphear had not only repeatedlythreatened him, but physically assaulted him and Walker with his fist, and then attackeddefendant with a wooden board striking him so hard that he fractured defendant's arm. Moreover,there is no evidence to support the conclusion that defendant had it in his power to retreat beforebeing attacked by Lamphear and prior to his being struck repeatedly with the board. There is alsono question that defendant struck Lamphear only once with the knife and that this occurred asdefendant was fending off Lamphear's attack and attempting to safely leave the scene (seePeople v Richardson, 55 AD3d at 935; Matter of Ismael S., 213 AD2d at 169).
While we are well aware that the credibility determinations of the factfinder should not bedisturbed on appeal unless clearly unsupported by the record (see People v Zindle, 48AD3d at 973; People v Dellemand, 205 AD2d 551, 552 [1994], lv denied 83NY2d 1003 [1994]), there can also be no doubt but that this Court, upon a review of the recordas a whole, is obligated to set aside a verdict that is against the weight of the evidence (seePeople v Richardson, 55 AD3d at 935; People v Oldacre, 53 AD3d 675, 678-679 [2008]). On these facts,we conclude that the People have failed to prove, beyond a reasonable doubt, that defendant didnot act in self-defense and, as a result, defendant's manslaughter and assault convictions must beset aside as not being supported by the weight of the evidence (see People v Bleakley, 69NY2d at 495).
Finally, while the mere possession of a pocket knife is not a crime and is only transformedinto criminal conduct upon a showing that the weapon was possessed "with intent to use thesame unlawfully against another" (Penal Law § 265.01 [2]), we note that defendant hasfailed to present any specific arguments on this appeal challenging his conviction for criminalpossession of a weapon in the fourth degree. As a result, we cannot conclude that his convictionfor that crime was against the weight of the evidence.
Cardona, P.J., Peters and Stein, JJ., concur. Ordered that the judgment is modified, on thefacts, by reversing so much thereof as convicted defendant of the crimes of manslaughter in thesecond degree and assault in the second degree under counts two and three of the indictment;said counts dismissed and sentences imposed thereon vacated; and, as so modified, affirmed.
Footnote *: County Court reduceddefendant's conviction for assault in the first degree because it concluded that by rejecting themanslaughter in the first degree charge the jury did not find that defendant acted with intent tocause serious physical injury to Lamphear. By reducing the charge to assault in the seconddegree, it reconciled the jury's verdict as to the mental state required for the commission of bothoffenses.