| People v Kravitz |
| 2010 NY Slip Op 06186 [75 AD3d 915] |
| July 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jay S.Kravitz, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.), renderedDecember 9, 2008, upon a verdict convicting defendant of the crimes of criminal possession of aweapon in the third degree and menacing in the second degree.
Defendant was at the home of his girlfriend when a neighbor (hereinafter the victim) came tothe door and complained that the girlfriend's dog had been chasing the victim's horses. Threatswere allegedly exchanged and defendant slammed the door. After the victim walked toward theroad where she had parked her vehicle and she was no longer visible, defendant and hisgirlfriend allegedly heard a gunshot. Defendant grabbed his girlfriend's .35 caliber rifle, openedthe door and fired it, allegedly at the ground. The victim testified that, after hearing that shot andthe sound of something whistling past her head, she looked back toward the house to seedefendant on the porch with a gun in his hands. The victim got into her vehicle, sped home andimmediately called the police. Defendant was subsequently charged and, following a jury trial,convicted of criminal possession of a weapon in the third degree and menacing in the seconddegree.
We cannot agree with defendant's argument that County Court erred in denying his requestfor a justification charge to the jury (see Penal Law § 35.05 [2]). "Although therecord must be considered in the light most favorable to the accused, a court need not charge[*2]justification if no reasonable view of the evidence establishesthe elements of the defense" (People v Reynoso, 73 NY2d 816, 818 [1988] [citationsomitted]; see People v Padgett, 60 NY2d 142, 144-145 [1983]). To warrant the charge,the record must show that the defendant responded to "an impending harm which constitutes apresent, immediate threat—i.e, a danger that is actual and at hand, not one that isspeculative, abstract or remote" (People v Craig, 78 NY2d 616, 624 [1991]). The statutecontemplates responsive conduct that is "reasonably calculated to have an actual effect inpreventing the harm. It rules out conduct that is tentative or only advisable or preferable orconduct for which there is a reasonable, legal alternative course of action" (id. at 623 [citationsomitted]).
Here, the evidence most favorable to defendant was the statement he gave to police on theday of the incident and the testimony of his girlfriend. In his statement, defendant claimed thatthe victim threatened to shoot him and the dog, whereupon he "slammed the door in her face andshe stormed up the driveway." He stated that when he then heard a shot from the top of thedriveway followed by the sound of a vehicle peeling out, he grabbed the rifle and shot a roundout at the ground. Defendant stated, "I was mad" and "I decided to let her know that I am armedtoo." His girlfriend testified that, after defendant slammed the door, the victim walked forapproximately 40 seconds up the driveway toward the road, went out of sight and then, 10seconds later, the girlfriend heard a shot. She testified that she heard a vehicle peeling out asdefendant opened the door, grabbed her gun, and fired a shot from the doorway out at theground. Given these accounts, it is clear that, rather than remain safely inside the girlfriend'shome and immediately call the police, defendant reacted out of anger by opening the door andfiring a shot at a time when the victim was out of sight and departing in her vehicle. Inasmuch asthere is no reasonable view of the evidence under which the jury could have concluded thatdefendant's conduct was necessary to avoid imminent injury or that he lacked a reasonable, legal alternative course of action, the justification defense was not available here(see Penal Law § 35.05 [2]; People v Craig, 78 NY2d at 623-625; People v Hicks, 35 AD3d 1027,1030 [2006]).
Defendant also argues that, because he holds a certificate of relief from disabilities grantedin connection with an earlier felony conviction, the People could not use that conviction as apredicate offense for the charge of criminal possession of a weapon in the third degree(see Penal Law § 265.02 [1]). Defendant did not, however, move or argue fordismissal of that charge on that ground. Although County Court determined sua sponte thatdefendant's certificate of relief from disabilities could not be the basis for dismissal of thatcharge, he did not object or move to reargue. Having failed to make his position known to thecourt or protest its ruling, the issue is unpreserved for our review (see CPL 470.05 [2];People v Robinson, 88 NY2d 1001, 1002 [1996]; People v Wynder, 41 AD3d 209, 209 [2007], lv denied 9NY3d 884 [2007]; People vMcGhee, 4 AD3d 485, 486 [2004], lv denied 2 NY3d 803 [2004]; People vMcLeod, 281 AD2d 325, 326 [2001], lv denied 96 NY2d 904 [2001]; People vMuniz, 273 AD2d 138, 139 [2000]).
Cardona, P.J., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.