| People v McClellan |
| 2008 NY Slip Op 02271 [49 AD3d 1203] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarkethyMcClellan, Appellant. (Appeal No. 2.) |
—[*1] Frank J. Clark, District Attorney, Buffalo (Steven Meyer of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered June 19, 2006. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree and criminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of assaultin the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in thefourth degree (§ 265.01 [2]). Contrary to the contention of defendant, Supreme Courtproperly determined that he failed to meet his burden of establishing that African-Americanswere " 'systematically excluded' " from jury service (People v Guzman, 60 NY2d 403,410 [1983], cert denied 466 US 951 [1984]; see CPL 270.10 [1], [2]), and weconclude that defendant's statutory and constitutional rights to a jury pool representing a faircross section of the community were not violated (see People v Shedrick, 66 NY2d 1015,1017 [1985], rearg denied 67 NY2d 758 [1986]; Guzman, 60 NY2d at 410;People v Jordan, 261 AD2d 947 [1999], lv denied 93 NY2d 1003 [1999]; seegenerally Judiciary Law § 500).
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction of assault in the second degree based on the People's failureto disprove his justification defense inasmuch as he failed to move for a trial order of dismissalon that ground (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contentionis without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The Peoplepresented evidence establishing that the 17-year-old defendant and four companions, all of whomare African-Americans, were followed by approximately five Caucasian men while walking in apredominately Caucasian neighborhood and that the Caucasian men yelled racial epithets andinitiated a physical confrontation. Three of the Caucasian men, who were unarmed, sustainedstab wounds; defendant is convicted of stabbing one of the men. A nonparticipating eyewitnesstestified that the two groups of men fought "one-on-one," and the victim and another participanttestified that defendant and the victim were standing upright and engaged in a fist fight whendefendant stabbed the victim. The People also presented evidence that defendant informed a[*2]police officer that he "wasn't about to run" because he was"sick of those white racists." Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a valid line ofreasoning and permissible inferences that could lead a rational person to conclude that, althoughthe evidence may support a finding that defendant "actually believed that deadly physicalforce was necessary," it nevertheless supports a finding that defendant's belief was not reasonableunder the circumstances (People v Wesley, 76 NY2d 555, 559 [1990]; see People v Butera, 23 AD3d1066, 1068 [2005], lv denied 6 NY3d 774, 832 [2006]).
We reject defendant's further contention that the verdict is against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Defendant testified that he was pulled to theground when he tried to run from the group of Caucasian men and that he swung his knife"wildly" while "five, six, seven" men beat and kicked him. Thus, we conclude that a differentfinding would not have been unreasonable (see generally id.). Nevertheless, the jury'sopportunity to view the witnesses and hear the testimony is entitled to great deference, and wefurther conclude that it does not appear that the jury failed to give the evidence the weight itshould be accorded (see generally id.). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.