| People v McCallum |
| 2012 NY Slip Op 04908 [96 AD3d 1638] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidMcCallum, Appellant. |
—[*1] David McCallum, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedFebruary 11, 2010. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends in his mainand pro se supplemental briefs that the evidence is legally insufficient to support his convictionbecause the People failed to meet their burden of disproving his justification defense beyond areasonable doubt. We reject that contention. The evidence at trial established that defendantadministered a fatal beating to the victim without justification. Defendant's statement to thepolice that he struck the victim only once with his fist was contradicted by the MedicalExaminer's testimony that the victim died as the result of "multiple" blunt force injuries. Inaddition, defendant admitted that the victim did not strike or harm him. Although defendant toldthe police that the victim threatened him with a hammer and screwdriver, no such tools werefound at the crime scene and there is no evidence that the victim was otherwise armed. We alsonote that defendant, who was 6'3" tall and weighed approximately 200 pounds, was considerablylarger than the victim. Viewing the evidence in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legallysufficient to support defendant's conviction insofar as it established "that a reasonable person inthe same situation [as defendant] would not have perceived that deadly force was necessary" (People v Umali, 10 NY3d 417,425 [2008], rearg denied 11 NY3d 744 [2008], cert denied 556 US 1110 [2009]; cf. People vMcClellan, 49 AD3d 1203, 1204 [2008], lv denied 11 NY3d 791 [2008]).Contrary to defendant's further contention in his main brief, when viewing the evidence in lightof the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the jury's rejection of the justification defense is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).[*2]
Defendant's remaining contentions are raised in his mainbrief unless specified otherwise. Defendant's contention that County Court's justification chargewas improper because it differed from the justification charge contained in the Criminal JuryInstructions lacks merit. The court's charge "accurately stated the applicable legal principles" andthus was not erroneous (People v Horn, 217 AD2d 406, 406 [1995], lv denied 86NY2d 843 [1995]; see People v Coleman, 70 NY2d 817, 819 [1987]). In addition, thecourt properly refused to charge criminally negligent homicide as a lesser included offense.Although the court charged the lesser included offense of manslaughter in the second degree, thejury convicted defendant of manslaughter in the first degree. Thus, "defendant is foreclosed fromchallenging the court's denial of his request to charge the further lesser included offense[ ]" ofcriminally negligent homicide (People v Williams, 273 AD2d 824, 826 [2000], lvdenied 95 NY2d 893 [2000]; see also People v Boettcher, 69 NY2d 174, 180[1987]).
Defendant failed to preserve for our review his further contention that the court erroneouslydismissed a prospective juror because he did not object to the prospective juror's dismissal(see CPL 470.05 [2]; People v Hopkins, 76 NY2d 872, 873 [1990]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). We reject defendant's contention that the court erred inallowing the People to present evidence of a prior altercation between defendant and the victim.Evidence regarding the altercation was "relevant . . . to provide backgroundinformation concerning the prior relationship between defendant and the victim" and wasrelevant to the determination whether defendant's use of deadly force was justified (People v Perez, 67 AD3d 1324,1325 [2009], lv denied 13 NY3d 941 [2010]).
Contrary to defendant's further contention, the verdict sheet did not contain an improperannotation (see generally People v Damiano, 87 NY2d 477, 480 [1996]). The notation onthe verdict sheet that manslaughter in the second degree was being submitted as a "lesserincluded offense" of manslaughter in the first degree is neither "statutory text" nor an "element[ ]of the crimes charged" (id.). Rather, that language simply "distinguished" betweenmanslaughter in the first degree and the lesser included offense of manslaughter in the seconddegree, which is permitted pursuant to CPL 310.20 (2) (see People v Miller, 73 AD3d 1435, 1435 [2010], affd 18NY3d 704 [2012]).
We further conclude that the sentence is not unduly harsh or severe. Contrary to defendant'srelated contention in his pro se supplemental brief, the fact that the court imposed a more severesentence after trial than that offered during plea negotiations does not demonstrate that defendantwas punished for exercising his right to a trial (see People v Taplin, 1 AD3d 1044, 1046 [2003], lv denied1 NY3d 635 [2004]).
We reject defendant's contention in his pro se supplemental brief that the court erred indenying his request for a jury charge regarding the justifiable use of physical force. Defendant'sentitlement to such a charge "turn[s] on whether there [is] a reasonable view of the evidence,viewed most favorably to defendant, that he only used nondeadly force" (People v Quinones, 91 AD3d 445,445 [2012], lv denied 198 NY3d 961 [2012]). We conclude that, because of the severityof the victim's injuries, "there was no reasonable view [of the evidence] that defendant only usednondeadly physical force, and thus [there was] no jury issue . . . whether defendantused deadly physical force" (id. at 446).
We have examined defendant's remaining contentions in his main and pro se supplementalbriefs and conclude that none requires reversal or modification. Present—Centra, J.P.,Peradotto, Carni, Lindley and Sconiers, JJ.