| People v Pine |
| 2011 NY Slip Op 02489 [82 AD3d 1498] |
| March 31, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesR. Pine, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Greene County (Bartlett, III,J.), rendered February 29, 2008, upon a verdict convicting defendant of the crimes ofmanslaughter in the first degree and assault in the first degree.
During a violent incident, defendant and codefendant Michael Deyo caused injuries to thevictim that ultimately resulted in the victim's death. An indictment charged defendant withmanslaughter in the first degree and assault in the first degree, alleging that he, either as principalor acting in concert with Deyo, struck the victim with a metal pipe, punched him in the head andstomped on his head.[FN1]A jury convicted defendant of both charges. County Court imposed concurrent sentences of 25years to life in prison, followed by five years of postrelease supervision. Defendant appeals.
The verdict was supported by legally sufficient evidence and not against the weight of theevidence. At trial, Deyo and defendant testified similarly regarding the beginning of the [*2]incident, but provided vastly different versions of the critical finalassault. The victim, who previously dated defendant's girlfriend, called defendant from thegirlfriend's apartment. Defendant placed a metal pipe in the back seat of his car and invited Deyoto accompany him to the apartment. Upon arriving, they discovered the victim ransacking theapartment. The victim then lunged at them, a struggle ensued and all three fought, tumblingdown two flights of stairs during the fight. The victim then left the building and ran down theroad. Deyo chased the victim, while defendant retrieved the pipe from his car. Realizing that thevictim was leaving, defendant then got in his car, picked up Deyo, and followed the victim to ahouse two tenths of a mile down the road. Defendant testified that Deyo was extremely angry atthe victim. Deyo testified that he told defendant that the situation should end and the police couldhandle things. He also testified that defendant almost hit the victim with the car, but the victimfled to the porch of a nearby house. Defendant testified that he tried to subdue the victim untilpolice arrived, but the victim fought with him and they rolled around on the ground, at whichtime Deyo appeared with the pipe and hit the victim over the head multiple times. Defendanttestified that he then took the pipe from Deyo and placed it in his trunk.
Contrarily, Deyo testified that, upon arriving at the house, he called 911 and requested policeassistance. He testified that he saw defendant pull the victim off the porch, stomp on him, punchand slap him, then retrieve the pipe and hit him with it directly on the head numerous times.Deyo stated that he never had contact with the pipe or the victim at the house. Witnesses whoarrived at the house saw defendant apparently placing something into his trunk, as well asslapping the victim, whereas they saw Deyo on his cellular telephone away from the house. Thevictim's blood was discovered on the sole and laces of defendant's shoes, but no blood was onDeyo's boots. It is undisputed that the victim died as a result of blunt force trauma to his head.
Viewed in a light most favorable to the People, Deyo's testimony and portions of defendant'stestimony constitute legally sufficient evidence of both crimes (see People v Terk, 24 AD3d 1038,1039-1040 [2005]). Defendant's argument essentially distills to an assertion that Deyo'stestimony should be rejected, but the jury was properly permitted to decide what testimony itwould believe. It appears that the jury believed Deyo's testimony that defendant hit the victimwith the pipe multiple times. Giving deference to the jury's credibilitydeterminations—obviously in favor of Deyo and against defendant—defendant'sintent to cause serious physical injury can be inferred from his actions and the surroundingcircumstances (see People v Steinberg, 79 NY2d 673, 682 [1992]; People v Terk,24 AD3d at 1039). Even if the jury accepted that Deyo hit the victim with the pipe, it could havedetermined that defendant was guilty because he acted in concert with Deyo and intentionallyaided him with the intent to cause serious physical injury by bringing the pipe, driving Deyo fromthe apartment to the house, hitting the victim and continually pushing the victim down to keephim on the ground (see People v Weiner, 226 AD2d 757, 758 [1996]). Viewing theevidence in a neutral light, and accepting the jury's credibility determinations, the verdict was notagainst the weight of the evidence (see People v Terk, 24 AD3d at 1040).
County Court did not err in refusing to charge the jury with the defense of justification. Adefendant is not entitled to such a charge where no reasonable view of the evidence wouldsupport the elements of the defense (see People v Reynoso, 73 NY2d 816, 818 [1988]; People v Ryan, 55 AD3d 960, 963[2008]). Although a person privileged to be in an apartment may use physical force to prevent orterminate another person from committing a criminal trespass, burglary or other offense on thepremises (see Penal Law § 35.20), under this provision defendant would only havebeen justified in using force on the premises of the girlfriend's apartment [*3]building. Once the victim fled from the apartment, defendant couldnot reasonably believe that force was necessary to prevent or terminate the commission of aburglary or criminal trespass, and the justification for the use of force ceased (see People vLugo, 291 AD2d 359, 359 [2002], lv denied 98 NY2d 699 [2002]).
Defendant also contends that he was justified in using force to effect the arrest of the victimfor crimes he committed in the apartment (see Penal Law § 35.30 [4]).[FN2]County Court correctly determined that the evidence could only be interpreted such thatdefendant was responsible for the use of deadly force—either as a principal oraccomplice—or was not in any way responsible. Deadly force is only justified in effectingan arrest for certain listed crimes (see Penal Law § 35.30 [4] [b]) or where thedefendant reasonably believes that such force is necessary to "[d]efend himself, herself or a thirdperson from what he or she reasonably believes to be the use or imminent use of deadly physicalforce" (Penal Law § 35.30 [4] [a]). The victim did not commit any of the listed crimes,making that subdivision inapplicable. The court appropriately determined that the evidence didnot support a reasonable belief on defendant's part that he was defending himself from theimminent use of deadly force by the victim. Defendant testified that the victim, when leaving theapartment building, threatened that his friends from a nearby city would get defendant and thatthe victim would get a gun from his car. Defendant testified that these statements caused him toretrieve the pipe from his car at the apartment building. Even so, once the victim left thatproperty on foot, under no view of the evidence could defendant have reasonably believed thatthe victim would imminently use deadly force against him (see People v Grady, 40 AD3d 1368, 1371 [2007], lv denied9 NY3d 923 [2007]). Accordingly, the court properly determined that the jury would either viewthe evidence to find that defendant was not guilty or that he was guilty and not justified in usingdeadly force against the victim. Thus, defendant was not entitled to a justification charge.
Defendant was not deprived of a fair trial by prosecutorial misconduct. He argues that thePeople improperly threatened several witnesses with incarceration if they did not rewrite theirstatements. When the police discover that individuals who have supplied statements may haveprovided incomplete or inaccurate information, the police may properly seek further statementsand inform the individuals of the potential criminal consequences of providing false statements.The police did so here, and defendant used these circumstances to effectively cross-examine theindividuals who changed their statements. Additionally, the prosecutor did not vouch for Deyo'scredibility on summation, he merely responded to defense counsel's attacks on Deyo's testimonyand character. Overall, the summation contained reasonable responses to the defense summationand fair comment on the evidence (seePeople v Wagner, 72 AD3d 1196, 1198 [2010], lv denied 15 NY3d 779 [2010]).
The sentence imposed was unauthorized, and must be modified. County Court stated that itwas sentencing defendant, as a second felony offender, to concurrent terms of 25 years to life inprison, followed by five years of postrelease supervision. The court stated that this was themaximum sentence allowed by law, and was justified by defendant's criminal history and hisactions in pursuing and attacking the victim in a heinous manner. While we do not find theimposition of the maximum sentence to be harsh or excessive, the sentence imposed was greater[*4]than the statutory maximum. The court was required toimpose a determinate term of imprisonment of at least eight years and not more than 25 years(see Penal Law § 70.02 [1] [a]; § 70.06 [6] [a]). We need not remit forresentencing but may instead impose a sentence authorized by statute (see People vLaSalle, 95 NY2d 827, 829 [2000]). Consistent with County Court's indicated intent toimpose the maximum sentence (cf.People v Warner, 69 AD3d 1052, 1054 [2010], lv denied 14 NY3d 894 [2010];People v Assadourian, 19 AD3d207, 208 [2005], lv denied 5 NY3d 785 [2005]), we sentence defendant toconcurrent terms of 25 years in prison for each count, to be followed by five years of postreleasesupervision.[FN3]
We have reviewed defendant's remaining contentions and find them to be without merit.
Spain, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentences imposed; defendant is sentenced to concurrent prison terms of25 years for each count, to be followed by five years of postrelease supervision; and, as somodified, affirmed.
Footnote 1: Deyo pleaded guilty to assault inthe first degree. He is separately appealing his judgment of conviction and the denial of hismotion pursuant to CPL 440.10.
Footnote 2: While the statute also justifiesthe use of force to prevent an escape from custody (see Penal Law § 35.30 [4]), thevictim was never in custody until after the final assault.
Footnote 3: We note that this sentence isconsistent with the sentence and commitment form, which differed from County Court'spronouncement as reflected in the sentencing transcript.