| People v Brunson |
| 2009 NY Slip Op 10002 [68 AD3d 1551] |
| December 31, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DonnellBrunson, Appellant. |
—[*1]
Kavanagh, J. Appeals (1) from a judgment of the County Court of Franklin County (Lawliss,J.), rendered December 7, 2001, upon a verdict convicting defendant of the crimes ofmanslaughter in the first degree and assault in the second degree (two counts), and (2) bypermission, from an order of said court, entered May 23, 2005, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In May 2000, defendant, while confined to a special housing unit at Upstate CorrectionalFacility in Franklin County, brutally assaulted and ultimately caused the death of his cellmate(hereinafter the victim). Thirty minutes after the assault began, correction officers finally gainedentry to the cell and, after restraining defendant, found that the victim had been seriously injured.The victim was immediately transported to a local hospital where he later died as a result ofserious brain injuries that he sustained in the attack.[FN1]Defendant was subsequently [*2]charged with murder in thesecond degree, manslaughter in the first degree and assault in the second degree (two counts).After a jury trial, defendant was acquitted of murder, but found guilty of the remaining threecharges. He was subsequently adjudicated a persistent violent felony offender and sentenced toan aggregate prison term of 25 years to life. County Court, without a hearing, denied defendant'ssubsequent CPL 440.10 motion to vacate his judgment of conviction. Defendant now appealsfrom both the judgment of conviction and the order denying his CPL 440.10 motion.
Initially, we note that defendant's argument that County Court failed to properly instruct thejury on the charge of justification has not been preserved for our review because he failed tovoice any objection to the court's proposed charge at the charge conference or after theinstructions had been delivered to the jury and it had commenced its deliberations (seeCPL 470.05 [2]; People v Pettway, 58 AD3d 944, 946-947 [2009], lv denied 12NY3d 820 [2009]; People v Cushner, 46 AD3d 1121, 1124 [2007], lv denied 10NY3d 809 [2008]). Even if we were to consider the claim, the charge, as delivered, satisfied thecourt's obligation to instruct the jury regarding fundamental legal principles that are applicable toall criminal cases as well as those that specifically applied to this action (see CPL 300.10[2]).
Specifically, defendant takes issue with County Court's refusal to provide the jury with adefinition of the term "forcible sodomy."[FN2]He also claims that the court committed reversible error when it instructed the jury thatdefendant was under a duty to retreat before using deadly physical force even though he claimedthat the victim had attempted to forcibly sodomize him. As for the court's refusal to defineforcible sodomy, this is such a well understood term (see generally People v Woodring,48 AD3d 1273, 1276 [2008], lv denied 10 NY3d 846 [2008]) that it is simply notreasonable to assume that the jury needed the term more fully described to be sure that there wasnot "any possible confusion" as to what defendant claims prompted his use of deadly physicalforce (People v Wise, 204 AD2d 133, 135 [1994], lv denied 83 NY2d 973[1994]).
We agree with defendant that County Court erred in instructing the jury that defendant had aduty to retreat before using any force even if he was under a reasonable belief that he was aboutto be subjected to a "forcible sodomy" by the victim. While such a duty does not exist in thatcircumstance (see Penal Law § 35.15 [2] [b]; People v Goetz, 68 NY2d96, 106 n 5 [1986]; People v Hill, 52 AD3d 380, 383 [2008]; People v Fuller,108 AD2d 822, 823 [1985]), we note that a defendant who seeks to justify his or her use of forceupon another may only use that degree of force that he or she reasonably believed "to benecessary to defend himself, herself or a third person" (Penal Law § 35.15 [1]; seePeople v Mothon, 284 AD2d 568, 570 [2001], lv denied 96 NY2d 865 [2001];People v Vecchio, 240 AD2d 854, 855 [1997]). Here, there is simply no reasonable viewof the evidence that would support the conclusion that defendant's [*3]assault of the victim was a reasonable response to a threat thatdefendant claimed existed or was in any way limited to that degree of force necessary to defendhimself from the victim's attack. The ferocious and unrelenting nature of the attack wasunderscored by testimony of correction officers who observed defendant continue to batter andbeat the victim long after he had ceased offering any resistance. Such evidence belies anysuggestion that the force employed by defendant was justified or used solely in his self-defense.In that regard, a correction officer testified that on eight different occasions during the attack,defendant refused to obey orders that he move to the cell's recreation pen and, instead, continuedto strike the victim, while shouting "say uncle" and "who wins, who wins." Defendant also isalleged to have told the officers to "get somebody down here fast or I will kill him." On thesefacts, it is simply not reasonable to conclude that this jury would have arrived at a differentverdict and found defendant's use of force justified even if it had been instructed that at the timedefendant first used force on the victim, he was not under an obligation to retreat.
Defendant also claims that County Court erred in denying without a hearing his motion tovacate his judgment of conviction on the ground that he did not receive the effective assistanceof counsel. In support of this contention, defendant identifies a laundry list of his counsel'sperceived shortcomings, including the fact that counsel had failed to object to the court's chargeon justification and its refusal to define "forcible sodomy." As previously noted, the content ofthe court's charge as delivered did not constitute reversible error. Defendant also complains ofcounsel's failure to properly advise him of all of the salient details regarding plea offers made bythe People and his failure to retain a psychologist to testify in his defense.
As for the plea offers, the People, before the matter was presented to the grand jury,proposed that defendant plead guilty to manslaughter in the second degree in full satisfaction ofall charges pending against him and he would receive a prison term of 7½ to 15 years. Thisoffer carried with it an admonition that if rejected and defendant was convicted after a trial, anapplication would be made by the People that he be adjudicated a persistent violent felonyoffender and a minimum prison term of 12 years to life be imposed as his sentence. Defendantacknowledges being informed of the offer to allow him to plead guilty to manslaughter, butdenies ever being told by his counsel that, if he rejected the proposed plea, an application wouldbe made that he be adjudicated a persistent violent felony offender.[FN3]
"Meaningful representation by counsel includes the conveyance of accurate informationregarding plea negotiations, including relaying all plea offers made by the prosecution.Defendant had the burden to show that a plea offer was made, that defense counsel failed toinform him of that offer, and that he would have been willing to accept the offer" (People vRogers, 8 AD3d [*4]888, 890-891 [2004] [citations omitted];see People v Fernandez, 5 NY3d 813, 814 [2005]). Defendant's claim, in essence, is that,had he known that as a persistent violent felony offender he faced a mandatory life sentence, hewould have accepted the People's plea offer. However, it is important to note that defendantfaced the same mandatory life sentence if convicted of murder in the second degree and that herepeatedly rejected any offers that would have allowed him to plead to a lesser charge that wouldhave avoided the imposition of a life sentence. In fact, defendant, despite his self-servingstatements to the contrary, never demonstrated any willingness or inclination to give up his rightto trial or accept any plea offer made by the People. Throughout these proceedings, he wasadamant that he would prevail at trial and not be convicted of any substantive charge inconnection with the victim's death. This conclusion is borne out by letters that defendant wroteto his mother in which he indicated that if he had "copped out" before going to trial he wouldalways wonder if he "could've beat it." Defendant also voiced concern that a guilty plea to anycharge would compromise a civil action he intended to commence to recover damages forinjuries he claimed to have sustained in this altercation. On these facts, even if counsel did not,as defendant claims, advise him of the implications of being adjudicated a persistent violentfelony offender, it did not constitute a failure to provide him with meaningful legalrepresentation (see People v Fernandez, 5 NY3d at 814; People v Goldberg, 33AD3d 1018, 1019 [2006]).
Nor are we persuaded by defendant's claim that counsel's representation was ineffectivesimply because he failed to employ a psychologist to aid in the defense. Initially, we note thatcounsel may have concluded for strategic reasons that a defense dependent upon psychiatrictestimony would be inconsistent and would hopelessly compromise defendant's principal claimthat he acted in self-defense and was justified in using force on the victim. Also, defendant'sacquittal of murder in the second degree—an offense requiring a specificintent—and his conviction of the lesser charge of manslaughter in the second degree raisessome question whether any such testimony would have added anything to the defense. Moreover,while counsel's representation of defendant may not have been perfect, he did obtain anadvantageous plea offer that defendant ultimately rejected and convinced County Court, over thePeople's objection, to deliver an instruction to the jury on justification that may, under the factspresented, have been inapplicable and inappropriate. Counsel, as previously noted, did obtain anacquittal for defendant of the most serious charge in the indictment, made appropriate objectionsthroughout the trial and, in multiple instances, sought mistrials on behalf of defendant. Onbalance, counsel provided defendant with meaningful representation and vigorously soughtthroughout the trial to fully protect his legal interests (see People v Baldi, 54 NY2d 137,147 [1981]; People v Black, 65 AD3d 811, 815 [2009]; People v Collins, 56AD3d 809, 810 [2008], lv denied 11 NY3d 923 [2009]; People v Echavarria, 53AD3d 859, 864 [2008], lv denied 11 NY3d 832 [2008]; People v Jackson, 48AD3d 891, 894 [2008], lv denied 10 NY3d 841 [2008]).
Defendant also claims that County Court should have ordered a mistrial after it learned thatsome members of the jury had inadvertently seen him in restraints as he was being transportedoutside the courtroom by officials of the Department of Correctional Services. We disagree.County Court's response to this incident was, in every way, measured and appropriate. Itadmonished the jurors that they should not draw any adverse inference against defendant as aresult of this observation, and the court received credible assurances from each of the jurors thathis or her verdict would be based solely upon the evidence introduced at trial. In that regard, itwas simply not practical to expect that this jury would not know that defendant had beenincarcerated in a state prison facility at the time of this incident and was still in custody while hewas on trial. As such, it cannot be said that defendant suffered any meaningful prejudice from[*5]this encounter, and his motion for a mistrial was properlydenied (see People v Harper, 47 NY2d 857, 858 [1979]; People v Farless, 245AD2d 878, 879 [1997], lv denied 91 NY2d 972 [1998]; People v Fioravantes,229 AD2d 784, 786 [1996], lv denied 89 NY2d 920 [1996]).
We arrive at the same conclusion with respect to defendant's claim regarding County Court'sdecision to place him in ankle restraints after the trial had commenced. To be sure, "a defendantmay not be physically restrained before the jury unless there is a reasonable basis, articulated onthe record, for doing so" (People v Rouse, 79 NY2d 934, 935 [1992]; see People vBuchanan, 13 NY3d 1, 4 [2009]; People v Robinson, 64 AD3d 803, 803-804 [2009];People v Rush, 44 AD3d 799, 800 [2007], lv denied 9 NY3d 1009 [2007]). Here,County Court was informed by a correction officer of security concerns that he had regardingdefendant during the trial and that, when questioned by the court in that regard, defendant stated,"I can't take it no more . . . The only answer is put some restraints on me." Whenthe court spoke to defendant about these comments and asked whether he needed to berestrained, defendant would not give any assurance that he could control his emotions during thetrial and specifically stated "you probably won't see it until it reaches a certain point that I can'thold it in anymore." Therefore, the court's decision to order the use of ankle restraints was, underthe circumstances, a reasonable response to the apparent threat that defendant presented tohimself as well as to others in the courtroom.
Finally, we are not persuaded that defendant's sentence was harsh and excessive.Considering his status as a persistent violent felony offender and the brutal nature of the attackhe inflicted upon the victim, we do not find that any extraordinary circumstances exist or that thesentence imposed was an abuse of County Court's discretion to warrant a reduction of hissentence (see People v Burroughs, 64 AD3d 894, 898-899 [2009], lv denied 13NY3d 794 [2009]; People v Portee, 56 AD3d 947, 950 [2008], lv denied 12NY3d 820 [2009]). Furthermore, we find no evidence to support defendant's claim that thisparticular sentence was imposed in retaliation for his refusal to give up his right to a trial or toenter a guilty plea (see People v Beauharnois, 64 AD3d 996, 1001 [2009], lvdenied 13 NY3d 834 [2009]; People v Perkins, 62 AD3d 1160, 1162 [2009], lvdenied 13 NY3d 748 [2009]; People v Massey, 45 AD3d 1044, 1048 [2007], lvdenied 9 NY3d 1036 [2008]).
Mercure, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1: While no skull fractures werenoted in the postmortem examination, the victim was found to have numerous lesions on thebrain caused by multiple blows to his head. In addition to traumatic cerebral edema andnumerous hemorrhages being found in and around the victim's brain stem, he had fractures to hisfront teeth, fluid in his abdomen, and bruises and abrasions across his entire body.
Footnote 2: Defendant did not ask that thisdefinition be given until after County Court had delivered its charge and was in the process ofproviding the jury with supplemental instructions after the jury had commenced its deliberations.
Footnote 3: In a letter addressed todefendant's attorney dated March 1, 2001, the specter of defendant being adjudicated a persistentviolent felony offender is discussed in detail by the District Attorney. Defendant claims not tohave seen this letter prior to going to trial or being informed by his attorney of its contents. In anaffirmation dated April 16, 2003, submitted in support of defendant's CPL 440.10 motion,defendant's trial counsel makes no reference to this letter nor makes any statements in regard todefendant's assertion that he failed to discuss persistent violent felony offender status with him.