| People v Bell |
| 2013 NY Slip Op 05012 [108 AD3d 795] |
| July 3, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTasheem Bell, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedSeptember 30, 2011 in Schenectady County, upon a verdict convicting defendant of thecrimes of assault in the third degree, reckless endangerment in the first degree, criminalpossession of a weapon in the second degree (two counts) and menacing in the seconddegree, and of the violation of harassment in the second degree.
On September 6, 2010, defendant was involved in a verbal altercation with a femaleacquaintance, victim A, threatening her with gun violence. That evening, a second verbalaltercation ensued between defendant, victim A, and her friend, victim B, wheredefendant again threatened gun violence. Shortly thereafter, defendant punched victim Ain the face and pushed her to the ground. Victim A subsequently enlisted two of herbrothers, one of whom had a baseball bat, to confront defendant and, following theirarrival, victim B engaged defendant in another verbal altercation, which resulted indefendant firing a number of gun shots, with one of the bullets striking victim B in theleg. Defendant fled and 47 days later a seven-count indictment was returned against himcharging two counts of assault in the first degree, reckless endangerment in the firstdegree, two counts of criminal possession of a weapon in the second degree, menacing inthe second degree and harassment in the second degree. Following a jury trial, he wasacquitted of the two counts of assault in the first degree, but found guilty of theremaining five counts and assault in the third degree as a lesser included offense of thesecond [*2]count of assault in the first degree. He wasthereafter sentenced to an aggregate prison term of 12 years and five years of postreleasesupervision. Defendant now appeals contending that Supreme Court erred in denying hisrequest for a justification charge and in instructing the jury regarding flight as evidenceof guilt, and also asks this Court to reduce his sentence in the interest of justice.
We affirm. Where, as here, a defendant employs deadly physical force, a justificationcharge is warranted only if " ' "there [is] some reasonable view of the evidence presentedthat [the] defendant reasonably believed that deadly force was being used or was about tobe used against him [or her] and that [he or she] was unable to safely retreat" ' " (People v Brown, 100 AD3d1035, 1037 [2012], lv denied 20 NY3d 1009 [2013], quoting People vRodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003];see People v Watts, 57 NY2d 299, 301 [1982]). Viewing the evidence in the lightmost favorable to defendant, there is no reasonable view of the evidence that deadlyforce was being used or was about to be used against him. The testimony established thatvictim B was unarmed and walking away from defendant when he started shooting. Thetestimony further established that the baseball bat possessed by one of victim A's brotherswas never raised or brandished in a threatening manner. Four witnesses testified that thebat was difficult to see because the brother had it at his side or it was hidden behind him,and two witnesses testified that they never observed a bat. Moreover, contrary todefendant's claim, Supreme Court's denial of the requested charge was not in any respectimpermissibly premised on a finding that defendant did not affirmatively prove thedefense (see generally People v McManus, 67 NY2d 541, 546-547 [1986]), but,rather, was properly based on the absence of any reasonable view of the evidence whichwould support it. In any event, since defendant was acquitted of both first degree assaultcounts, his argument that the court erred in refusing to charge justification on thosecounts is academic (see People v Jones, 58 AD2d 609, 610 [1977]; see also People v Almonte, 73AD3d 531, 532 [2010], lv denied 15 NY3d 771 [2010]). To the extent thatthis argument is preserved with respect to the counts of criminal possession of a weapon,we find it to be meritless (see People v Pons, 68 NY2d 264, 267 [1986]).
We also reject defendant's contention that Supreme Court erred in instructing the juryregarding flight as evidence of consciousness of guilt. Several witnesses testified thatdefendant was wearing a black and red jacket and that, following the shooting, he ranaway from the scene. Additionally, a patrol officer testified that he found a red and blackjacket in a parking lot located in the direction defendant was last seen traveling after theshooting. The foregoing testimony amply supports the court's cautionary charge to thejury that defendant's flight could be considered as evidence of consciousness of guilt (see People v Gordon, 101AD3d 1158, 1160 [2012], lv granted 21 NY3d 912 [2013]; People v DiBella, 277 AD2d 699, 702 [2000], lv denied 96 NY2d 758 [2001];People v Cunningham, 222 AD2d 727, 730 [1995], lv denied 87 NY2d1018 [1996]).
Finally, a reduction of defendant's sentence is not warranted as Supreme Court didnot abuse its discretion in imposing the sentence and we find no extraordinarycircumstances in our review of the record (see People v Lozada, 35 AD3d 969, 971 [2006], lvdenied 8 NY3d 947 [2007]).
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.