| People v Crique |
| 2009 NY Slip Op 05183 [63 AD3d 566] |
| June 23, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Roger Jason Crique, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Amyjane Rettew of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered October 16,2007, convicting defendant, after a jury trial, of murder in the second degree, and sentencing himto a term of 25 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). On the contrary, wefind the evidence overwhelmingly established defendant's homicidal intent and disproved hisjustification defense. The evidence leads to the inescapable conclusion that defendant's claimthat the victim was the initial aggressor was entirely false. Moreover, even under defendant'sversion of the facts, his use of force was entirely unjustified in view of the duty to retreat(see Penal Law § 35.15 [2] [a]). Accordingly, we find no evidence to support atheory that defendant was initially justified in using force, but that he then used excessive force,and that such use of excessive force was merely reckless, or cannot be shown to be the cause ofdeath.
Since defendant did not request a jury instruction on second-degree (reckless) manslaughter,"the court's failure to submit such offense does not constitute error" (CPL 300.50 [2]).Furthermore, defendant did not preserve his claim that the court should have charged the jurythat if it found defendant was initially justified but used excessive force, a conviction would alsorequire a finding that the excessive portion of the force caused the victim's death, and we declineto review it in the interest of justice. Defendant's claim that his attorney rendered ineffectiveassistance by not making these requests is unreviewable on direct appeal because it involvesmatters outside the record regarding counsel's strategic choices and defendant's own participationin that strategy (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love,57 NY2d 998 [1982]). In this case, the fact that counsel requested submission of first-degreemanslaughter is not dispositive of whether he had strategic reasons for not requestinginstructions on second-degree manslaughter and excessive force. On the existing record, to theextent it permits review, we find that defendant received effective assistance under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see alsoStrickland v Washington, 466 US 668 [1984]). Counsel could have [*2]reasonably concluded that a theory that defendant was initiallyjustified, but then used excessive force, was unsupported by the evidence while carrying thepotential of confusing the jury and undermining defendant's core defenses of completejustification and extreme emotional disturbance. In any event, regardless of whether a reasonablycompetent attorney would have made the requests at issue, we find that the absence of theseinstructions did not cause defendant any prejudice or deprive him of a fair trial. There is noreasonable possibility that the verdict would have been more favorable to defendant had hisattorney made these requests (see e.g. People v Kennedy, 7 AD3d 272 [2004],lv denied 3 NY3d 676 [2004]).
The court's reasonable doubt charge was not constitutionally deficient. The court expresslyinstructed the jury that a reasonable doubt may be based on a lack of evidence, and thatinstruction was not contradicted by another portion of the charge directing the jury to decide thecase "on the evidence," since that phrase was used in the context of cautioning the jury to avoidsympathy or prejudice.
The court properly exercised its discretion in precluding defendant from calling ahandwriting expert, since nothing in the expert's proposed testimony was relevant, even whentaken together with the testimony of defendant's psychiatric expert witness. Defendant did notestablish that the handwriting expert was competent to testify there was anything unusual orabnormal about defendant's use of several handwriting styles. Defendant received a fullopportunity to advance his psychiatric claims by way of other evidence, and the court's ruling onthe handwriting expert did not deprive defendant of his right to present a defense (see Cranev Kentucky, 476 US 683, 689-690 [1986]).
The court's other evidentiary rulings and denials of mistrial motions, including a motion thatwas based on a portion of the prosecutor's summation, were proper exercises of discretion.Defendant did not preserve his other challenges to the prosecutor's summation, and we decline toreview them in the interest of justice. As an alternative holding, we find that the prosecutor madeinappropriate sympathy arguments, but that these arguments did not deprive defendant of a fairtrial. Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Richter, JJ.