| People v Johnson |
| 2013 NY Slip Op 00836 [103 AD3d 1226] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KevinC. Johnson, Also Known as "Stunt," Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedMay 16, 2008. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [3]), defendant contends that County Courtimproperly instructed the jury with respect to his justification defense. Defendant failedto object to the justification charge as given, however, and his contention is thusunpreserved for our review (seePeople v Carr, 59 AD3d 945, 946 [2009], affd 14 NY3d 808 [2010];People v Folger, 292 AD2d 841, 842 [2002], lv denied 98 NY2d 675[2002]). In any event, we conclude that "the jury, hearing the whole charge, would gatherfrom its language the correct rules [that] should be applied in arriving at [a] decision" (People v Jones, 100 AD3d1362, 1366 [2012] [internal quotation marks omitted]). Because the court did noterroneously instruct the jury regarding justification, defense counsel was not ineffectivefor failing to object to that charge (see People v Fairley, 63 AD3d 1288, 1290 [2009], lvdenied 13 NY3d 743 [2009]). Nor was defense counsel ineffective for failing toamend his pretrial motion papers; even had an amendment resulted in a reopened orenlarged suppression hearing, defendant cannot show that any evidence would have beenconsequently suppressed (seePeople v Watson, 90 AD3d 1666, 1667 [2011], lv denied 19 NY3d 868[2012]; see also People vCaban, 5 NY3d 143, 152 [2005]).
Finally, there being no dispute that defendant shot the unarmed victim multiple timesat close range with an illegal handgun, we reject his contention that the verdict is againstthe weight of the evidence with respect to the murder conviction because the Peoplefailed to disprove his justification defense (see generally People v Danielson, 9 NY3d 342, 348-349[2007]). Defendant had sought out the victim, whose nickname was "Mooch," and hefound him sitting on a stoop, smoking a cigarette with a female. Defendant thenapproached him, gun drawn, and said, "Hey, yo, Mooch, that's how you feel?" Almostimmediately thereafter, defendant fired four or five shots at the victim. Three of thebullets struck the victim, one of which went through his heart [*2]and killed him almost instantaneously. Defendant then fledon foot. When arrested three days later, defendant admitted to the police that he shot thevictim, explaining that he did so because he feared that, due to a dispute over drugmoney, the victim was going to kill him "sooner or later." Thus, although defendanttestified at trial that he believed that the victim was reaching for a gun in his waistbandmoments before he shot him, we nevertheless conclude that the People disproved thejustification defense beyond a reasonable doubt (see People v McCallum, 96 AD3d 1638, 1639 [2012],lv denied 19 NY3d 1103 [2012]; People v Rogers, 94 AD3d 1152, 1152 [2012]; People v Fisher, 89 AD3d1135, 1137-1138 [2011], lv denied 18 NY3d 883 [2012]).Present—Scudder, P.J., Fahey, Lindley, Valentino and Martoche, JJ.