| People v Walker |
| 2014 NY Slip Op 00751 [114 AD3d 1134] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vChristopher E. Walker, Appellant. |
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Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered April 4, 2008. The judgment convicted defendant, upon a juryverdict, of manslaughter in the first 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 ofmanslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends thatSupreme Court's justification instruction to the jury was improper with respect to the"initial aggressor" language used therein. Initially, we reject the People's contention thatdefendant failed to preserve his contention for our review. "Regardless of whetherdefendant's objection to the testimony was sufficiently explicit, the trial court, inresponse to defendant's protest, 'expressly decided the question raised on appeal,' " anddefendant's contention thus is preserved for our review (People v Smith, 22 NY3d 462, 465 [2013], quoting CPL 470.05 [2]; see People v Eduardo, 11NY3d 484, 493 [2008]). We agree with the People, however, that defendant's contentionlacks merit. It is well settled that, upon a defendant's request, "a court must charge thejury on any claimed defense that is supported by a reasonable view of the evidence[,]which the court must assess in the light most favorable to the defendant" (People vTaylor, 80 NY2d 1, 12 [1992]). The use of the "initial aggressor" language iswarranted where, as here, there is an issue of fact whether defendant was the first personto use deadly physical force in the encounter (see People v McWilliams, 48 AD3d 1266, 1267 [2008],lv denied 10 NY3d 961 [2008]; People v Daniel, 35 AD3d 877, 878 [2006], lv denied8 NY3d 945 [2007]). With that language, "the court's justification charge adequatelyconveyed to the jury that defendant could be justified in the use of deadly physical forceto defend himself [or another] against deadly physical force initiated by" the victim(McWilliams, 48 AD3d at 1267; see People v Humphrey, 109 AD3d 1173, 1174-1175[2013]). Furthermore, the court's justification instruction, viewed as a whole, properlystated "the material legal principles applicable to the particular case, and, so far aspracticable, explain[ed] the application of the law to the facts" (CPL 300.10 [2]; see People v Drake, 7 NY3d28, 33-34 [2006]). Thus, " 'the jury, hearing the whole charge, would gather from itslanguage the correct rules [that] should be applied in arriving at [a] decision' "(Drake, 7 NY3d at 34; see People v Johnson, 103 AD3d 1226, 1226 [2013], lvdenied 21 NY3d 944 [2013]).[*2]
We reject defendant's further contention that, inresponse to a jury question, the court erred in providing an expanded definition of intentwith respect to, inter alia, the original charge of murder in the second degree (Penal Law§ 125.25 [1]) and the manslaughter charge of which he was convicted. Whenpresented with a jury question, the court is obligated to provide a meaningful responsepursuant to CPL 310.30 (seePeople v Kadarko, 14 NY3d 426, 429 [2010]), and the court did so here.Defendant's contention that the court's instruction unfairly highlighted evidenceunfavorable to his defense is not supported by the record. Moreover, the court did not byits supplemental instruction change the premise upon which defendant's summation wasbased, inasmuch as defendant's intent was at issue throughout the trial (cf. People vGreene, 75 NY2d 875, 876-877 [1990]). Defendant thus "was not denied aneffective summation by reason of the court's charge on the issue of" defendant's intent(People v Dewindt, 156 AD2d 706, 708 [1989], lv denied 76 NY2d 733[1990]).
Defendant further contends that the verdict is against the weight of the evidence.Based upon our independent review of the evidence pursuant to CPL 470.15 (5), andviewing the evidence in light of the elements of the crime of manslaughter in the firstdegree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we aresatisfied that the verdict is not contrary to the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]).
The sentence is not unduly harsh or severe. We have considered defendant'sremaining contentions and conclude that they are without merit. Present—Scudder,P.J., Smith, Centra, Carni and Whalen, JJ.