| People v Quinones |
| 2012 NY Slip Op 00037 [91 AD3d 445] |
| Jnury 5, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Thomas Quinones, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered July 1, 2009,convicting defendant, after a jury trial, of manslaughter in the second degree, and sentencing him,as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.
The court properly denied defendant's request for a justification charge. In the circumstancesof this case, defendant's entitlement to such a charge turned on whether there was a reasonableview of the evidence, viewed most favorably to defendant, that he only used nondeadly force.
In written and videotaped statements, defendant explained that, during an argument, thevictim swung at defendant and missed him. Defendant then hit the victim, who fell on the bed.Defendant then "jumped on the bed" and the two men "started tussling on the bed." Defendant"somehow ended up putting [the victim] in a head lock." Defendant continued to hold the victimuntil he "stopped moving," whereupon defendant realized that the victim was dead. Defendantdid not indicate how long he applied the hold prior to realizing that the victim was no longermoving. Based on her autopsy and review of defendant's statements, the medical examiner foundthat defendant had applied a carotid sleeper hold, which was consistent with her finding that thevictim had died of homicidal asphyxiation. The medical examiner explained that application of acarotid sleeper hold will cause unconsciousness within 6 to 20 seconds, but that death will notresult unless the hold is maintained for a period of minutes after the person loses consciousness.The medical examiner further testified that if a person being asphyxiated loses consciousness,that fact would be apparent to the assailant.
Accordingly, the evidence, viewed as a whole, established not only that defendant applied acarotid sleeper hold, but that he applied it for a lethal length of time after the victim had alreadylost consciousness; likewise, the evidence afforded no reasonable view to the contrary.Therefore, there was no reasonable view that defendant only used nondeadly physical force, andthus no jury issue as to whether defendant used deadly physical force, defined as "physical forcewhich, under the circumstances in which it is used, is readily capable of causing death or otherserious physical injury" (Penal Law § 10.00 [11]).[*2]
The court properly received evidence that defendant tookthe victim's body to a secluded area and set it on fire. This evidence was probative ofconsciousness of guilt and absence of accident. The photographic and videotape evidencerelating to the body, which the court carefully limited, was not excessively gruesome orvoluminous (see People v Wood, 79 NY2d 958 [1992]; People v Pobliner, 32NY2d 356, 369-370 [1973], cert denied 416 US 905 [1974]). Defendant's remainingclaims concerning this evidence, including his uncharged crimes argument, are unpreserved andwe decline to review them in the interest of justice. As an alternative holding, we find no basisfor reversal. Any inadequacy in the court's limiting instructions was harmless.Concur—Saxe, J.P., Sweeny, Moskowitz, Manzanet-Daniels and RomÁn, JJ.