| People v McWilliams |
| 2008 NY Slip Op 01229 [48 AD3d 1266] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ErnestMcWilliams, Appellant. (Appeal No. 1.) |
—[*1] Ernest McWilliams, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered September 8, 2004. The judgment convicted defendant, upon a jury verdict, of murderin the second degree, criminal possession of a weapon in the second degree, and criminalpossession of a weapon in the third degree.
It is hereby ordered that said appeal from the judgment insofar as it imposed a three-yearperiod of postrelease supervision for criminal possession of a weapon in the third degree isunanimously dismissed (see People v Haywood, 203 AD2d 966 [1994], lv denied83 NY2d 967 [1994]) and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofmurder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon inthe second degree (former § 265.03 [2]), and criminal possession of a weapon in the thirddegree (former § 265.02 [4]). The charges arose out of an incident in which defendant andanother individual accosted the victim on the street, and the confrontation culminated in thevictim's death from multiple .380 caliber gunshot wounds. Defendant was shot in the arm by a.22 caliber bullet during the confrontation, and he raised the defense of justification at trial.
Defendant contends that reversal is required because Supreme Court erred in its charge onjustification in the use of deadly physical force by defining the term "initial aggressor" within themeaning of Penal Law § 35.15 (1) (b) as "the first person who uses or threatens theimminent use of offensive physical force." Defendant failed to preserve that contention for ourreview (see CPL 470.05 [2]) and, in any event, we conclude that reversal is not requiredbased on the court's justification charge, which mirrored the model charge set forth in 1 CJI(NY)35.15. We agree with defendant that, where there is a reasonable view of the evidence that thedefendant initiates nondeadly offensive force and is met with deadly physical force, the defendantmay be justified in the use of defensive deadly physical force and that, in such cases, the terminitial aggressor is properly defined as the first person in the encounter to use deadlyphysical force (see e.g. People [*2]v Daniel, 35 AD3d 877, 878 [2006], lv denied 8NY3d 945 [2007]; People v Walker, 285 AD2d 364 [2001], lv denied 97 NY2d643 [2001]; People v Mickens, 219 AD2d 543 [1995], lv denied 87 NY2d 904[1995]). We nevertheless conclude that, despite the absence of the word "deadly" from that partof the court's charge defining the term initial aggressor, the court's justification charge adequatelyconveyed to the jury that defendant could be justified in the use of deadly physical force todefend himself against deadly physical force initiated by the victim. Thus, the justificationcharge, viewed in its entirety, was "a correct statement of the law" (People v Coleman, 70NY2d 817, 819 [1987]; see People vMelendez, 11 AD3d 983, 983-984 [2004], lv denied 4 NY3d 888 [2005]; seegenerally People v Ladd, 89 NY2d 893, 895 [1996]; People v McDaniels, 19 AD3d 1071 [2005], lv denied 5NY3d 830 [2005]).
Contrary to the further contention of defendant, the court properly refused to suppress hisoral and written statements made to the police. Although defendant was detained and questionedby the police for approximately 16 hours, "that does not, by itself, render the statement[s]involuntary" (People v Weeks, 15AD3d 845, 847 [2005], lv denied 4 NY3d 892 [2005]). Here, as in Weeks,defendant waived his Miranda rights, there were several breaks in the questioning, anddefendant was provided with food and drink (see id.) and, in addition, he slept during oneof the breaks (see generally People v Whorley, 286 AD2d 858 [2001], lv denied97 NY2d 689 [2001]; People v Nelson, 234 AD2d 977 [1996], lv denied 89NY2d 1039 [1997]).
We have considered the remaining contentions of defendant, including those raised in the prose supplemental brief, and conclude that they are without merit. Present—Hurlbutt, J.P.,Smith, Fahey, Peradotto and Pine, JJ.