| People v Simmons |
| 2013 NY Slip Op 07215 [111 AD3d 975] |
| November 7, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v BrianSimmons, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered May 11, 2011, upon a verdict convicting defendant of the crime ofassault in the first degree.
Shortly after midnight on December 8, 2009, defendant shot Joel Winkler Jr. with ashotgun as Winkler stood unarmed in the doorway to the garage attached to defendant'shome in the Town of Rotterdam, Schenectady County. Winkler was in a relationship ofseveral months with defendant's niece by marriage, Erika Barrett, who had been livingwith defendant and his wife, Penny Simmons, since September 2009, when Barrettturned age 18. While initially defendant and Simmons got along with Winkler, whopicked up Barrett daily at the house, tensions developed over, among other things,defendant's excessive daily alcohol consumption and behavior or remarks to Barrett andWinkler, as well as defendant and Simmons' open disapproval of Winkler. On the nightof the shooting, defendant woke up Barrett and told her that she had to move out withinseven days because she was causing too much stress; she packed her things and calledWinkler to come and pick her up, crying hysterically. A heated argument erupted in thehouse and then in the garage between Barrett and Simmons, who called Barrett's motherto come and get her; Simmons physically restrained Barrett, refusing to let her leave withWinkler, who had pulled his car into the driveway. Winkler waited, observing theirheated arguments, then exited his car and approached the garage door and told Barrettshe could leave; he tried to persuade Simmons to let Barrett go with him, arguing withSimmons about Barrett's [*2]right to leave.
According to Winkler and Barrett, Simmons pulled Barrett by the shoulders as shetried to leave, and blocked her exit; Simmons then pushed and struggled with Winkler,who did not fight back. Winkler and Barrett testified that defendant stood silently in therear of the garage and never moved or provided a warning until he picked up hisshotgun, walked toward Winkler and shot him at close range in the upper chest near hisleft shoulder only inches from his heart, stating, "Let's see if you ever step foot into myhouse again." Winkler testified that when he saw defendant with a shotgun, he turned tohis right to leave, and was shot by defendant. Simmons, who called 911 moments beforethe shooting, testified that she told Winkler to leave and he pushed and shoved her andforced his arm up to her throat, choking her, until defendant pushed Winkler off her andstruggled with him. Defendant testified that he tried to stay out of the conflict untilWinkler choked his wife and slammed her against a wall, at which point he claims hefought with Winkler, who hit him causing him to fall down; only then did defendant gethis gun, load it, scream at Winkler to get out of the house, warn him he was going toshoot and to get his hands off his wife, and then he intentionally shot Winkler.
Defendant was indicted for the crime of intentional assault in the first degree (intentto cause serious physical injury with a deadly weapon). At trial, the disputed issues werewhether the shooting had been justified and whether defendant's alleged intoxication orother facts negated a finding of intent. The jury was instructed on the justificationdefense but convicted defendant as charged. His motion to set aside the verdict wasdenied, and a prison sentence of 10 years with three years of postrelease supervision wasimposed. Defendant now appeals.
Initially, defendant's challenge to the legal sufficiency of the evidence disproving hisjustification defense was not preserved for our review, as it was not specifically raised inhis motion to dismiss at the close of the People's proof,[FN1]which defendant did not renew after he presented testimony and the proof was closed (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Lane, 7 NY3d 888, 889 [2006]; People vGray, 86 NY2d 10, 19-22 [1995]). Further, while defendant raised this challenge inhis CPL 330.30 (1) motion to set aside the verdict, such a motion can only be granted forissues that, if raised on appeal, "require[d] a reversal . . . as matter of law"(CPL 330.30 [1]). A legal sufficiency challenge that has not been properly preserved attrial is not an issue that would require reversal as a matter of law and, therefore, is not aproper basis for CPL 330.30 (1) relief, which was properly denied (see People vHines, 97 NY2d 56, 61 [2001]; People v Sudler, 75 AD3d 901, 904 [2010], lvdenied 15 NY3d 956 [2010]; People v Thomas, 38 AD3d 1134, 1136 [2007], lvdenied 9 NY3d 852 [2007]).
Turning to defendant's challenge to the verdict as against the weight of the evidence,we necessarily review the sufficiency of the evidence of each element (see People v Johnson, 107AD3d 1161, 1163 n 2 [2013], lv denied 21 NY3d 1075 [2013]). Even if adifferent verdict would have been reasonable, upon weighing the evidence andconflicting accounts of the shooting in a neutral light and according deference to thejury's first-hand credibility assessments, we find that the jury was warranted in findingbeyond a reasonable doubt that defendant was not justified in using deadly force and hadacted with the requisite intent, and in finding him guilty as [*3]charged (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d633, 636 [2006]; see also Penal Law §§ 25.00 [1]; 35.00).Defendant's contention that the evidence established that his actions were justified isbased on a mischaracterization of the trial testimony, particularly that of Winkler andBarrett, and reliance upon Simmons' and defendant's accounts, which the jury wasentitled to reject.
The jury was charged that the applicable justification defense required thatdefendant, as a person in possession of his home/dwelling, "reasonably believe[d] thatanother person[—Winkler—was] committing or attempting to commit aburglary of such dwelling," entitling him to use "deadly physical force upon such otherperson" if he "reasonably believe[d] such to be necessary to prevent or terminate the. . . burglary" (Penal Law § 35.20 [3]; see Penal Law §35.15 [2] [c];[FN2]People v Cox, 92 NY2d 1002, 1004 [1998]). This inquiry involves a subjectiveand objective element, i.e., it focuses on the defendant and the circumstances he or sheconfronted at the time of the shooting, as well as " 'what a reasonable person in thosecircumstances and having defendant's background and experiences would conclude' " (People v DiGuglielmo, 75AD3d 206, 215 [2010], affd 17 NY3d 771 [2011], quoting People vWesley, 76 NY2d 555, 559 [1990]; see People v Fisher, 89 AD3d 1135, 1137 [2011], lvdenied 18 NY3d 883 [2012]).
It was not disputed that Winkler had been to defendant's home many times in recentweeks to pick up Barrett and that, on the night of the shooting, defendant and Simmonswere aware that Winkler came in response to Barrett's phone call requesting that he pickher up at that late hour. The testimony of Winkler and Barrett established that it wasBarrett who opened the garage door in her effort to leave; Winkler did not hit, push,choke or initiate any contact with Simmons and had no physical contact or words withdefendant. Winkler only came to the door to get Barrett and did not attempt to enter thehome; Winkler was pulled into the garage at most one foot during the struggle, whileBarrett was holding his arm and both were being pushed or pulled by Simmons in hereffort to prevent Barrett from leaving. They further testified that, without warning,defendant shot Winkler, who never suggested he had a weapon, as Winkler turned in thedoorway to leave, about an arm's length from Simmons. Simmons' and defendant'saccounts of the incident—in which Winkler allegedly assaulted and chokedSimmons, prompting defendant's intervention and struggle with Winkler and warningthat he would shoot—were not more believable or particularly credible. Simmonsand defendant did not report any injuries to responding police, instead producing picturestaken days later. Defendant's testimony that he feared Winkler because Winkler hadthreatened to kill him on a previous occasion, after defendant made crude comments toBarrett, was easily discredited by defendant's own testimony reflecting that he did nottake Winkler's remarks seriously; other testimony also supported the conclusion that, incontext, Winkler's earlier remarks—"I killed people for less"—would nothave instilled fear in any reasonable person. Indeed, defendant and Simmons neverreported the incident to the police, continued to allow Winkler to pick up and see Barrettdaily, and there was no credible testimony that this remark caused them to fear him.[*4]
Defendant's own testimony undermined hisjustification defense, reflecting that he was mad at Winkler and wanted him to leavewithout Barrett, and not that he feared Winkler or believed he was attempting toburglarize his home. Indeed, when asked why he did not fire a warning shot, defendanttestified that he "wasn't mad at [his] roof . . . This a**hole was in my house.He needed to go," not that he feared Winkler. The credible testimony did not support theconclusion, now urged by defendant, that Winkler entered with intent to commit a crimein defendant's home, such as an assault upon anyone present, but, rather, establishedmerely his intent to pick up his upset girlfriend (see Penal Law § 140.20).Further, "[w]hen burglary is predicated on an unlawful entry, [the intruder] must havehad the intent to commit a crime other than criminal trespass at the time of entry"(People v Ramirez, 42AD3d 671, 672 [2007] [emphasis added]; see People v Gaines, 74 NY2d358, 363 [1989]). Thus, we find that the jury's rejection of the justification defense wasnot contrary to the weight of credible evidence (see People v Fisher, 89 AD3d at1137-1138).
Next, we find no error in County Court's refusal to charge reckless assault in thesecond degree (see Penal Law § 120.05 [4]).[FN3]On cross-examination, defendant readily admitted that he shot Winkler intentionally,which was consistent with his statements after the shooting. Thus, even considering theevidence in a light most favorable to defendant (see People v Henderson, 41NY2d 233, 236 [1976]; People v Britt, 283 AD2d 778, 780-781 [2001], lvdenied 96 NY2d 916 [2001]), there was no reasonable view of the evidence tosupport a finding that, in shooting Winkler, defendant acted recklessly (see PenalLaw § 15.05 [3]) and not intentionally (see Penal Law § 15.05 [1]).Accordingly, the court properly denied defendant's request for this lesser charge(see CPL 300.50 [1]; People v Miller, 6 NY3d 295, 302 [2006]).
Next, upon our review of the record, we find that defendant received a fair trial andwas not deprived of the effective assistance of counsel. Defendant's claims ofprosecutorial misconduct are largely unpreserved given the failure to object to them attrial (see People v Harris, 98 NY2d 452, 492 [2002]). Testimony concerningdefendant's gun ownership, gun rights signage in the garage and hunting experience, andhistory of bragging about the accuracy of his shooting abilities, while arguably undulyrepeated, were relevant to key disputed issues at trial, including defendant'sintent[FN4]in shooting Winkler and his experience with and knowledge of guns, as the prosecutorargued to the jury. The evidence was not improperly adduced to argue that defendant hada propensity for violence. The prosecutor's efforts to compare defendant's tactics andexperience while hunting to his actions in the garage—in remaining quietly in therear of the garage and stealthily and suddenly surprising Winkler by aiming a gun at him,as Winkler and Barrett described—were fair comment on the evidence and notoutside the bounds of fair advocacy. Since this was not evidence of prior bad acts orcrimes, a pretrial Molineux ruling was [*5]notrequired (see People vBillups, 45 AD3d 1176, 1177 [2007]). When the prosecutor argued thatdefendant was "fixated on guns" or that defense counsel wanted the jury to acquit,County Court sustained defense objections. Most of the summation remarks defendantnow challenges were fair comment on the evidence or reasonable inferences therefrom.Viewed as a whole, we do not find that there was prosecutorial misconduct of the typethat deprived defendant of due process or a fair trial (see People v Tarantola, 178AD2d 768, 770 [1991], lv denied 79 NY2d 954 [1992]; see also People vCalabria, 94 NY2d 519, 523 [2000]; cf. People v Riback, 13 NY3d 416, 423 [2009]).
Defendant's specific contentions in his pro se brief that defense counsel did noteffectively represent him are belied by the record. Winkler did not testify to an unchargedcrime by defendant; rather, he testified that immediately after this shooting he thought,incorrectly, that defendant had also shot one of the others and fled with Barrett. Therewas no testimony or evidence that anyone other than Winkler was shot and, thus, noreason for defense counsel to object. To the extent that defendant argues that defensecounsel failed to utilize the prior statements of the People's witnesses to impeach theirtrial testimony, this is inaccurate and, moreover, defendant has not persuasivelydemonstrated the absence of legitimate or strategic reasons for counsel to forgo probingthese alleged inconsistencies (see People v Rivera, 71 NY2d 705, 709 [1988]).Viewed in totality, defense counsel vigorously pursued a cogent defense, which includedjustification and intoxication defenses, effectively cross-examined witnesses, madeappropriate objections, and provided overall meaningful representation (see People v Oathout, 21NY3d 127, 128 [2013]; People v Benevento, 91 NY2d 708, 712 [1998]).Defendant's remaining contentions likewise lack merit.
Peters, P.J., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant's motion fora trial order of dismissal at the close of the People's case addressed only the legalsufficiency of the evidence of serious physical injury and intent.
Footnote 2: The defense concededduring the charging conference that Winkler had not been using or about to use deadlyphysical force and, thus, Penal Law § 35.15 (1) and (2) (a) (i)—regardinguse of deadly physical force in defense of another—were inapplicable.
Footnote 3: Notably, the jury wasinstructed regarding intentional assault in the second degree (see Penal Law§ 120.05 [1]).
Footnote 4: Simmons essentiallytestified that the gun's discharge was accidental and defendant had not intended to shootWinkler, only to frighten him. When defendant testified as the last defense witness, heeffectively conceded that he shot Winkler intentionally, although denying any intent tokill him, claiming that he had been justified, given Winkler's alleged assault on Simmons,his prior threats and his unlawful entry.