| People v Richardson |
| 2014 NY Slip Op 02140 [115 AD3d 617] |
| March 27, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Johntel Richardson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered June30, 2009, convicting defendant, after a jury trial, of criminal possession of a weapon inthe third degree and menacing in the second degree, and sentencing him, as a secondfelony offender, to an aggregate term of 2½ to 5 years, unanimously affirmed.
The court properly declined to instruct the jury on the defense of justification withregard to the weapon possession count, in which it was alleged that defendant possesseda pipe with intent to use it unlawfully. "[B]ecause possession of a weapon does notinvolve the use of physical force, there are no circumstances when justification can be adefense to the crime of criminal possession of a weapon" (People v Pons, 68NY2d 264, 267 [1986] [citations omitted]).
Nevertheless, defendant asserts that the court should have instructed the jury, inessence, that an intent to use a weapon justifiably is not an intent to use it unlawfully.However, defendant made no such request. The difference is not merely a matter ofsemantics; we note that the relevant CJI charge, which defendant cites with approval,clearly distinguishes between justification as a defense (which is inapplicable topossessory crimes) and justification as a factor bearing on the lawfulness of intent(see CJI2d[NY] Penal Law art 265, Intent to Use Unlawfully and Justification).Accordingly, we find that defendant did not preserve his claim that the court should havecharged the jury along the lines of the cited CJI charge, and we decline to review it in theinterest of justice.
As an alternative holding, we find no basis for reversal. The court clearly instructedthat possession of the pipe was a crime only if the People proved beyond a reasonabledoubt that defendant intended to use it unlawfully. Furthermore, it was clear to the jury,from the context of the entire trial, that the lawfulness of defendant's intent was to bedetermined on the basis of his assertion that he possessed the pipe solely for the purposeof defending himself. There is no reasonable possibility that the court's charge misled thejury to believe that a guilty verdict would be proper even if the People failed to disprovedefendant's claim of justifiable intent.
The court properly declined to charge the justification defense as to the menacingcount. There was no reasonable view of the evidence, viewed most favorably todefendant, to support such a charge. Nothing in either the prosecution nor defenseversions of the incident could [*2]support a reasonableview that defendant committed the acts constituting menacing, but did so withjustification.
The court properly denied defendant's application pursuant to Batson vKentucky (476 US 79 [1986]). The only aspect of defendant's Batson claimthat is arguably preserved is his claim that when the prosecutor cited a particularpanelist's recent relocation to New York County and prior service on a trial that allegedlyresulted in an acquittal or hung jury, those explanations were pretextual. However, wefind that the record, viewed as a whole, supports the court's finding to the contrary. Sucha finding is entitled to great deference (see People v Hernandez, 75 NY2d 350[1990], affd 500 US 352 [1991]). At worst, the prosecutor was honestly mistakenabout the facts surrounding the panelist's prior jury service, and we do not find anydisparate treatment by the prosecutor of similarly situated panelists.
Defendant failed to preserve his claims that the prosecutor's reasons for challengingother panelists were pretextual (see People v Allen, 86 NY2d 101, 111 [1995]),or any of his challenges to the procedures employed by the court in resolving theBatson application (see People v Richardson, 100 NY2d 847, 853[2003]), and we decline to review them in the interest of justice.
As an alternative holding, we reject them on the merits. Concur—Moskowitz,J.P., Richter, Manzanet-Daniels, Clark and Kapnick, JJ.