| People v Vanderhorst |
| 2014 NY Slip Op 03307 [117 AD3d 1197] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJah-Lah Vanderhorst, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedAugust 8, 2012 in Albany County, upon a verdict convicting defendant of the crime ofmanslaughter in the first degree.
In April 2011, defendant killed the victim by stabbing him in the chest during a knifefight at Hoffman Park in the City of Albany. Numerous witnesses watched thealtercation, most of whom, like defendant and the victim, were teenagers; one individualvideo-recorded the fight on a cell phone. Defendant and codefendant Dhoruba Shuaib,who was accused of aiding defendant during the fight, were jointly indicted on one countof murder in the second degree; their trials were later severed.[FN*]
Defendant stipulated at his trial that he had caused the victim's death, but maintainedthat his actions were justified because he believed that the victim—with whom hehad been feuding for many months—was going to kill him. The jury acquitteddefendant of murder in the second degree, but convicted him of the lesser includedoffense of manslaughter in the first degree. Defendant was sentenced to a prison term of25 years, followed [*2]by five years of postreleasesupervision. He appeals.
Initially, defendant challenges the legal sufficiency of the evidence, asserting that thePeople failed to establish that he had the requisite intent, and failed to disprove hisjustification defense. This challenge was not preserved for appellate review by asufficiently specific trial motion for dismissal (see People v Gray, 86 NY2d 10,19 [1995]). However, defendant also contends that the jury verdict was against theweight of the evidence and, in reviewing this claim, we necessarily determine whetherthe elements of the crime were proven beyond a reasonable doubt and whether thejustification defense was disproven (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Hughes, 111 AD3d1170, 1171 [2013]).
The verdict was not against the weight of the evidence. There was testimony from anumber of the individuals who watched the fight, and the video-recording, which depictsthe encounter beginning shortly after the fight commenced, was played for the jury. Therecording reveals that defendant and the victim were both armed with knives throughoutmost of the altercation, but that the victim consistently backed away and never struck atdefendant, while defendant advanced toward the victim, lunged at him, stepped aroundthe victim to prevent him from retreating, and, at one point, threw a bicycle at him. Thevictim can be heard early in the encounter asking defendant to put the knife down and"give me a fair one," and onlookers are heard repeatedly calling defendant's name andurging him to stop, fight with his hands, and put down the knife. At several points in thealtercation, bystanders attempted unsuccessfully to pull defendant away from the victimor step between them. Ultimately, the victim backed into a fence as defendant and Shuaibapproached; defendant then lunged toward the victim, stabbed him and ran away. Thevictim briefly pursued defendant before collapsing.
Defendant and several of his relatives testified about a longstanding history ofanimosity that they said was instigated by the victim, who had allegedly taunteddefendant, chased him, and otherwise harassed him on multiple occasions. Defensewitnesses described various efforts to defuse these hostilities, including complaints topolice, rides that defendant arranged to avoid meeting the victim, and a confrontationbetween the mothers of defendant and the victim, in which they agreed to try to keeptheir sons apart. Witnesses testified about previous altercations between the two,including an incident in which defendant threw a brick, another in which, as stipulatedbetween defendant and the People, the victim told his mother that defendant had chasedhim with a knife, and an alleged threat by defendant to stab the victim on the night beforehe did so. Defendant testified that the victim initiated the encounter in the park byapproaching defendant, armed and accompanied by several friends; defendant said thathe did not try to run away because he did not believe he could outrun thevictim—who was a high school track star—that he threw the bicycle to tryto disarm the victim, and that he did not swing at the victim until his efforts to "get [his]distance from [him]" failed. On cross-examination, however, he acknowledged, amongother things, that he had heard the victim urge him to put down the knife, and that hecould have run away.
As defendant notes, there were inconsistencies in the eyewitness accounts of thedetails of the encounter in the park, in particular as to what transpired before the videobegan and whether the fight was instigated by defendant or the victim. However, thesediscrepancies, considered with the video, created credibility issues to be resolved by thejury. According deference to the jury's assessments and upon our own review of theevidence—including that pertaining to defendant's intent and his justificationdefense—we find no reason to disturb the verdict (see People v Brooks, 32 AD3d616, 616-617 [2006], lv denied 8 NY3d 844 [2007]; [*3]People v Di Bella, 277 AD2d 699, 700-701 [2000],lv denied 96 NY2d 758 [2001]; compare People v Jones, 59 AD3d 864, 866-867[2009]).
Supreme Court did not abuse its discretion in admitting audio recordings of two callsmade to 911 by observers during the altercation, in which the callers described theparticipants, begged for police assistance and—in one of thecalls—repeatedly shouted at defendant, by name, to stop. The cries and screams ofonlookers can be heard in the background of the recordings; both callers testified,acknowledging that they placed the calls. It is evident that the recordings were made asthe altercation was unfolding and while the callers were exposed to the stress of theongoing emergency. Further, the callers' statements were corroborated by the video andthe trial testimony. Thus, the recordings were admissible pursuant to the present senseimpression exception to the hearsay rule (see People v Buie, 86 NY2d 501, 511[1995]; People v Foster, 52AD3d 957, 961 [2008], lv denied 11 NY3d 788 [2008]), as well as theexcited utterance exception (seePeople v Barnes, 64 AD3d 890, 892 [2009], lv denied 13 NY3d 858[2009]; People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100NY2d 624 [2003]). Moreover, defendant's right to a fair trial was not prejudiced by acaller's statement on one of the recordings that "[the victim] is self-defense." Atdefendant's request, Supreme Court gave the jury a limiting instruction to the effect thatthe caller would explain during her testimony what she meant by this statement, that thecourt's charge would instruct the jury as to the legal definition of self-defense and thatthey could not determine what constitutes self-defense from the caller's words. The juryis presumed to have followed this instruction, which we find sufficient to cure anyresulting prejudice (see People vMorris, 21 NY3d 588, 598 [2013]; People v Alvarez, 38 AD3d 930, 932 [2007], lvdenied 8 NY3d 981 [2007]).
Supreme Court did not deprive defendant of his right to due process and to present adefense by precluding the testimony of his expert, Kenneth Cooper, a certified securitytrainer with experience instructing law enforcement officers in the use of force andweapons, including knives. In an offer of proof, Cooper testified as to his opinions of theintentions and strategies employed by defendant and the victim, as allegedly revealed bytheir body positions and movements during the video. Cooper opined that defendant'sbody language showed that he was "blustering" and that he intended to run away; hefurther described the "Tueller drill," a principle allegedly describing the distance thatmust be maintained during a knife fight because of the distance an armed person cantravel before the other combatant can react. However, Cooper acknowledged that theseopinions were based on principles derived from law enforcement training, and that hehad no knowledge as to whether defendant or the victim had such training. In theabsence of such evidence, the proposed testimony was "within the average juror'sunderstanding, not beyond the range of ordinary knowledge or intelligence and [did] notrequire professional or scientific knowledge" (People v Johnston, 273 AD2d 514,517 [2000], lv denied 95 NY2d 935 [2000]; see People v Murphy, 79 AD3d 1451, 1452-1453 [2010],lv denied 16 NY3d 862 [2011]; see generally People v Diaz, 20 NY3d 569, 575 [2013]).Thus, it was properly precluded.
Defendant next contends that he did not receive meaningful representation in that histrial counsel failed to preserve his challenge to the legal sufficiency of the evidence.However, such a failure does not constitute ineffective assistance where, as here, a trialmotion for dismissal would likely have been denied in view of the evidence and trialtestimony (see People vJones, 101 AD3d 1241, 1242-1243 [2012], lv denied 21 NY3d 944[2013]; People vMcRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]).As to the claim that defense counsel should not have stipulated to the fact that defendantcaused the victim's death by inflicting the [*4]stabwound, this decision appears to have been strategically intended to transfer the jury'sfocus from the fact that defendant caused the wound—which was apparent fromthe video—to his justification defense and acrimonious history with the victim (see People v Nguyen, 90 AD3d1330, 1334 [2011], lv denied 18 NY3d 960 [2012]; People v Knox, 80 AD3d887, 889 [2011], lv denied 16 NY3d 860 [2011]; People v Fancher,267 AD2d 770, 771 [1999], lv denied 94 NY2d 919 [2000]). Viewed in itstotality, the record establishes that counsel made appropriate pretrial motions, presented acogent theory of defense, effectively cross-examined witnesses, and obtained an acquittalon the charge of murder in the second degree, thus providing defendant with meaningfulrepresentation (see People vLawing, 110 AD3d 1354, 1356 [2013]; People v Rogers, 94 AD3d 1246, 1251 [2012], lvdenied 19 NY3d 977 [2012]).
Finally, we find no abuse of discretion or extraordinary circumstances warrantingreduction of defendant's sentence in the interest of justice. Despite defendant's youth,considering the documentation in the presentence investigation report, includingdefendant's school records, together with his lack of remorse and the devastating impactof his conduct on the victim and his family, imposition of the maximum sentence wasneither harsh or excessive (seePeople v Shuaib, 111 AD3d 1055, 1058 [2013]) nor so grossly disproportionateto the severity of his crime as to constitute cruel and unusual punishment (see USConst 8th Amend; NY Const, art I, § 5; People v Thomas, 2 AD3d 982, 984 [2003], lvdenied 1 NY3d 602 [2004]).
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Shuaib was convicted bya jury of manslaughter in the first degree, and the verdict was upheld on appeal (People v Shuaib, 111 AD3d1055 [2013]).