| People v Ball |
| 2017 NY Slip Op 07341 [154 AD3d 1060] |
| October 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AngelaBall, Appellant. |
Mitch Kessler, Cohoes, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Clark, J., Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered April 21, 2015, upon a verdict convicting defendant of the crimes of murder in thesecond degree and assault in the first degree.
On the morning of November 25, 2013, defendant called 911 and reported that "she had beenattacked and needed [police] assistance." When law enforcement officials arrived at defendant'sapartment, the lifeless body of the victim—with whom defendant had been in an intimaterelationship—was discovered covered by a sheet and a blanket on the floor inside theapartment. At the scene and at the police station, defendant gave oral and written statements inwhich she claimed that the victim had approached her aggressively with a knife and that shereacted in self-defense by hitting him with a nearby baseball bat and, later, by stabbing him withthe knife. An autopsy determined that the victim suffered from, among other injuries, stabwounds and fractures to his skull and forearms and that the cause of his death was internalhemorrhage resulting from a stab wound to the chest that had punctured his lung, pericardiumcavity and inferior vena cava. Defendant was subsequently indicted on charges of murder in thesecond degree and assault in the first degree.
At the ensuing jury trial, the People argued that defendant perpetrated a "one-sided attack"against the victim, presenting evidence that the victim's age and declining mobility would haveprevented him from initiating an attack against defendant and that defendant had inflicted thefatal stab wound while the victim was lying defenseless on the ground. Defendant did not [*2]testify, but, as early as her counsel's opening statement, argued thatshe had acted in self-defense. At the close of all of the proof, County Court denied defendant'srequest that the jury be charged with the defense of justification. The jury ultimately returned averdict finding defendant guilty as charged. County Court thereafter sentenced defendant toconcurrent prison terms of 20 years to life for the conviction of murder in the second degree and20 years for the conviction of assault in the first degree, to be followed by five years ofpostrelease supervision. Defendant appeals, and we reverse.
We agree with defendant that County Court committed reversible error by denying herrequest for a justification charge. A justification charge is required when there is any reasonableview of the evidence—whether presented by the People or the defendant (see People vSteele, 26 NY2d 526, 528-529 [1970]; People v Singh, 139 AD3d 761, 763 [2016], lv denied 28NY3d 936 [2016]; People v Zayas,88 AD3d 918, 921 [2011])—that could lead a jury to conclude that the defendantreasonably believed that the victim was using or was about to use deadly physical force and thatthe defendant could not safely retreat, or was under no duty to retreat (see Penal Law§ 35.15 [2] [a]; People vPetty, 7 NY3d 277, 284 [2006]; People v McManus, 67 NY2d 541, 549 [1986];People v Bell, 108 AD3d 795,796 [2013], lv denied 22 NY3d 995 [2013]). A defendant has no duty to retreat when heor she is within his or her own home and is not the initial aggressor (see Penal Law§ 35.15 [2] [a] [i]; People vAiken, 4 NY3d 324, 328 [2005]; People v Watts, 57 NY2d 299, 301 [1982]). Ifthe defendant requests a justification charge and the evidence, viewed in the light most favorableto the defendant, supports the defense, the failure to give the charge constitutes reversible error(see People v Padgett, 60 NY2d 142, 144-145 [1983]; People v Watts, 57 NY2dat 301; People v Curry, 85 AD3d1209, 1211-1212 [2011], lv denied 17 NY3d 815 [2011]).
Viewing the evidence in the light most favorable to defendant, as we must (see People vSteele, 26 NY2d at 529; People vRamirez, 118 AD3d 1108, 1112 [2014]), we find that there is a reasonable view of theevidence from which the jury could have concluded that defendant was justified in using deadlyforce against the victim. In both of her written statements to the police, which were admitted intoevidence, as well as her oral statements during the 911 call and at the scene, which were testifiedto by the 911 dispatcher and responding officers, defendant maintained that the victim had beenthe initial aggressor, having entered the apartment and attacked her with a knife. Defendantconsistently stated that she reacted in self-defense and out of fear for her life and that she had "ablack out moment" when she repeatedly struck the victim with the bat and stabbed him with theknife. In one of her statements, she asserted that she delivered the final stab wounds after thevictim stated something that sounded like " 'I'll get you.' " In addition, as testifiedto by the officers involved and as evidenced by one of her written statements, defendant claimedthat the victim had previously perpetrated acts of physical, sexual and emotional abuse againsther. She further stated that the victim had threatened to kill her during a fight a few days earlier.Significantly, in assessing whether a defendant reasonably believed that the victim was using orabout to use deadly physical force, consideration may be given to "any relevant knowledge thedefendant had about [the victim]," including incidents of past violence (People v Goetz,68 NY2d 96, 114 [1986]; see People v Miller, 39 NY2d 543, 549-553 [1976]; People v Young, 33 AD3d 1120,1123 [2006], lv denied 8 NY3d 929 [2007]; CJI2d[NY] Penal Law § 35.15[2], Justification: Use of Deadly Physical Force in Defense of a Person).
Furthermore, although the DNA evidence established that defendant was the majorcontributor of DNA on the knife handle, DNA from a male donor—whose contributionwas too small for identification—was found on the handle. A broken chair was alsodiscovered at the scene, which, as testified to by a police investigator, could indicate that astruggle took place [*3]between defendant and the victim.Finally, an employee of the victim testified that, on separate occasions, he had previouslyobserved defendant with a black eye and scratches on her neck and experienced instances inwhich the victim would become agitated with him if he made defendant smile or laugh.Inasmuch as the foregoing evidence could lead a jury to conclude that the victim was the initialaggressor and that defendant reasonably believed that the victim was using or about to use deadlyphysical force against her in her own home, County Court was required to charge the jury withthe defense of justification (see People v Curry, 85 AD3d at 1212; People vGreen, 98 AD2d 908, 909 [1983]; compare People v Ramirez, 118 AD3d at1112-1113). The court's failure to do so compels us to reverse the judgment of conviction andremit for a new trial.[FN*]
Although a new trial is required, we find it necessary to further comment upon CountyCourt's Molineux ruling. Prior to trial, the People sought permission to present evidence,for the purposes of cross-examination and/or rebuttal, of three prior bad acts that defendantallegedly perpetrated against individuals other than the victim, including defendant's formerparamour. The court indicated that it was "likely to allow [the People] to use the incidents forpurposes of impeachment on cross-examination," depending on the substance of defendant'sdirect examination, should she testify, and that the proffered Molineux evidence wouldspeak to defendant's anticipated testimony that she had acted in self-defense for "the purposes ofintent, mistake, and lack of accident." Thereafter, during her case-in-chief, defendant expressedan intention to call her former paramour to testify regarding an August 2013 incident inwhich—according to defendant's offer of proof—the former paramour allegedlywitnessed the victim "holding [defendant] down" and had to pull the victim off of defendant. Thecourt correctly ruled that it would permit defendant to call her former paramour to presentevidence of the victim's alleged prior bad act, if it was established that defendant had knowledgeof the act and it reasonably related to the crime charged (see People v Miller, 39 NY2d at551; People v Every, 146 AD3d1157, 1163 [2017], affd 29 NY3d 1103 [2017]). However, the court also ruled thatthe People would then be permitted to offer, in rebuttal, evidence regarding defendant's threealleged prior bad acts against individuals other than the victim. Defendant subsequently withdrewher intention to call her former paramour as a witness, and she did not testify on her ownbehalf.
County Court erred in ruling that the People would be permitted to question defendant as tothe three alleged prior bad acts if she testified, and to present evidence of these alleged prior badacts if defendant called her former paramour as a witness. Evidence of a defendant's prioruncharged crimes or bad acts may not be admitted into evidence solely to demonstrate his or her[*4]bad character or criminal propensity, but may be admitted toestablish one of the recognized Molineux exceptions—motive, intent, absence ofmistake, common plan or scheme and identity—or where such proof is inextricablyinterwoven with the charged crimes, provides necessary background information or completes awitness's narrative and, further, is found to be more probative than prejudicial (see People v Ward, 141 AD3d853, 860 [2016]; People vRivera, 124 AD3d 1070, 1073 [2015], lv denied 26 NY3d 971 [2015]). Theprior bad acts alleged to have been committed by defendant were unrelated to the victim, havingoccurred roughly two or more years prior to the day in question, and would serve only todemonstrate that defendant had a propensity to initiate and/or engage in physical altercations. Assuch, County Court should have ruled that evidence of these alleged prior bad acts wasinadmissible (see People v Bradley,20 NY3d 128, 135 [2012]; People vKaruzas, 124 AD3d 927, 928-929 [2015]; compare People v Morgan, 149 AD3d 1148, 1149 [2017]; People v Burkett, 101 AD3d 1468,1470 [2012], lv denied 20 NY3d 1096 [2013]). County Court's errors in this regard nodoubt influenced the determinations that defendant made regarding the evidence that shepresented in support of her justification defense, including her decision not to testify on her ownbehalf and her decision not to call her former paramour as a witness. However, inasmuch asCounty Court committed reversible error by failing to charge the jury with the defense ofjustification, we need not decide whether these errors were harmless.
In light of our holding, we need not address defendant's remaining contentions.
McCarthy, J.P., Garry, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Franklin County for a newtrial.
Footnote *:During deliberations, CountyCourt received a note from the jury asking the court to—in the court'swords—"clarify motive if it should be considered." The record does not reflect thatCounty Court provided counsel with meaningful notice of the content of the note, as required(see CPL 310.30; People vMack, 27 NY3d 534, 538-539 [2016]; People v O'Rama, 78 NY2d 270, 277[1991]). We emphasize that, to comply with the requirements of CPL 310.30 and avoid a modeof proceedings error, trial courts must "provide counsel with meaningful notice of a substantivejury inquiry by reading the precise content of the note into the record in the presence of counsel,defendant, and the jury before providing a response" (People v Mack, 27 NY3d at 539;see People v Nealon, 26 NY3d152, 160-162 [2015]).