| People v Ramirez |
| 2014 NY Slip Op 04261 [118 AD3d 1108] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBrian Ramirez, Appellant. |
Eugene P. Grimmick, Troy, for appellant.
Timothy Nugent, Special Prosecutor, East Greenbush, for respondent.
Stein, J. Appeals (1) from a judgment of the County Court of Rensselaer County(Jacon, J.), rendered September 18, 2008, upon a verdict convicting defendant of thecrimes of manslaughter in the second degree and criminal possession of a weapon in thethird degree, (2) from a judgment of said court, rendered September 18, 2008, whichrevoked defendant's probation and imposed a sentence of imprisonment, and (3) from ajudgment of said court, rendered November 13, 2008, which resentenced defendant.
During the early afternoon hours of May 10, 2007, defendant's brother engaged in afistfight with a friend of the victim, during which defendant and the victim also foughtand defendant allegedly struck the victim in the head with a brick. The following day, thevictim and two friends were walking up the street and encountered defendant, his brotherand two of their friends. The victim approached that group and confronted defendantabout the previous day's events. Defendant refused to engage in a conversation about theincident and the victim and his friends continued up the street. Shortly thereafter,defendant and his group headed back down the street and the victim and his friendsfollowed. The victim again approached defendant and the two briefly exchanged words,after which defendant stabbed the victim twice with a knife and then fled. As a result ofthe stab wounds, the victim died a short time later.
Thereafter, defendant was indicted for murder in the second degree and criminal[*2]possession of a weapon in the third degree.Defendant was tried by a jury and, at the close of the proof, sought a justificationinstruction. County Court granted defendant's request for such instruction with respect tothe murder charge over the People's objection. The court also granted defendant's requestto charge the jury with the lesser included offenses of manslaughter in the second degreeand criminally negligent homicide. Following deliberations, the jury found defendant notguilty with respect to the murder charge, but found him guilty of manslaughter in thesecond degree and criminal possession of a weapon in the third degree.
Prior to sentencing, defendant moved pursuant to CPL 330.30 to set aside the verdicton the ground that the court erred by failing to charge the jury with the justificationdefense with respect to the lesser included offenses. At sentencing, County Court denieddefendant's motion and, after defendant admitted to his conviction of a prior felony,sentenced him to an aggregate prison term of 6 to 15 years. Defendant thereafter admittedto violating previously-imposed conditions of probation and was sentenced to anadditional three-year prison term followed by two years of postrelease supervision, to beserved consecutively to the sentence for defendant's instant crimes. Defendant appealsfrom the judgment of conviction for the instant crimes, as well as from the finding that heviolated his probation. County Court subsequently determined that the original sentencewas contrary to statute and resentenced defendant to an aggregate prison term of7
We affirm. We first address defendant's contention that the evidence was legallyinsufficient and that his conviction was against the weight of the evidence. Preliminarily,we note that defendant's challenge to the legal sufficiency of the evidence was notpreserved for our review, as he failed to renew his motion to dismiss on that ground atthe close of all proof (seePeople v Menegan, 107 AD3d 1166, 1169 [2013]; People v Lapi, 105 AD3d1084, 1085 n 1 [2013], lv denied 21 NY3d 1043 [2013]). Nevertheless,whether the elements of the crimes charged were adequately proven is necessarilyevaluated in our weight of the evidence review (see People v Simmons, 111 AD3d 975, 977-978 [2013],lv denied 22 NY3d 1203 [2014]; People v Menegan, 107 AD3d at 1169;People v Bjork, 105 AD3d1258, 1259-1260 [2013], lv denied 21 NY3d 1040 [2013], certdenied 571 US &mdash, 134 S Ct 1306 [2014]). With respect to that inquiry, wherea different verdict would not have been unreasonable, this Court must "weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Tinkler, 105 AD3d 1140, 1141 [2013], lvdenied 21 NY3d 1020 [2013] [internal quotation marks and citations omitted];see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Tubbs, 115 AD3d1009, 1010 [2014]), according appropriate deference to the jury's" 'opportunity to view the witnesses, hear the testimony and observedemeanor' " (People vTompkins, 107 AD3d 1037, 1038 [2013], lv denied 22 NY3d 1044[2013], quoting People v Bleakley, 69 NY2d at 495; accord People v Cridelle, 112AD3d 1141, 1143 [2013]).
Here, the jury heard from both of the victim's friends who witnessed the incident andtestified that, as the victim approached defendant and the two began to argue, defendanthit the victim using a stabbing motion, after which the victim bled profusely. Anyinconsistencies between that testimony and statements originally given by these witnessesto the police were thoroughly explored through cross-examination at trial and presentedcredibility issues for the jury to determine (see People v O'Daniel, 105 AD3d 1144, 1147-1148 [2013],lv granted 21 NY3d 1018 [2013]; People v McCray, 102 AD3d 1000, 1003-1004 [2013],affd 23 NY3d 193 [2014]). Further, the countymedical examiner testified that the victim [*3]sufferedtwo stab wounds to the left side of his torso, one of which made a small perforation in hisstomach and the other of which went completely through his heart, resulting in his death.In addition, a knife was found in close proximity to the crime scene and the DNA profileof a blood stained swab from the blade matched both defendant and the victim, whiledefendant's DNA was also found on the handle. An acquaintance of defendant alsotestified that defendant ran past him around the time of the incident, looked scared andstated to his brother that he had "killed that son of a bitch." Another witness, who wasincarcerated with defendant at the county jail, testified that defendant had bragged aboutthe crime and stated that he was going to make up a story that he had stabbed the victimin self-defense. Such evidence demonstrated that defendant, unprovoked by any physicalaggression on the part of the victim, struck him twice in the torso with a knife and theinferences that may be drawn from that evidence were sufficient to support a finding thatdefendant intended to use the knife unlawfully (see People v Brown, 100 AD3d 1035, 1036-1037 [2012],lv denied 20 NY3d 1009 [2013]; People v Purvis, 90 AD3d 1339, 1340 [2011], lvdenied 18 NY3d 997 [2012]) and that he consciously disregarded the substantial andunjustifiable risk that stabbing the victim would result in the victim's death (seePeople v DiBella, 277 AD2d 699, 700-701 [2000], lv denied 96 NY2d 758[2001]; see e.g. People vGeorge, 43 AD3d 560, 564 [2007], affd 11 NY3d 848 [2008]).Accordingly, we are not persuaded that the jury's verdict was against the weight of theevidence.
We are similarly unpersuaded by defendant's contention that his right to a fair trialwas compromised by County Court's failure to instruct the jury to consider thejustification defense with respect to the charges of manslaughter in the second degreeand criminally negligent homicide. Initially, we note that this issue was not preserved forour review because defendant did not timely object to the jury charge as given (see People v Hawkins, 110AD3d 1242, 1244 [2013], lv denied 22 NY3d 1041 [2013]; People v Fauntleroy, 108AD3d 885, 887 [2013], lv denied 21 NY3d 1073 [2013]; People v Ryan, 46 AD3d1125, 1127-1128 [2007], lv denied 10 NY3d 939 [2008]). Nonetheless,defendant now requests that we exercise our interest of justice jurisdiction and takecorrective action. Inasmuch as we agree with the People that defendant was not entitledto a justification charge in the first instance, we conclude that no corrective action iswarranted.
A justification charge must be given "if there is any reasonable view of the evidence,when it is considered in the light most favorable to the defendant, that would allow thejury to conclude that the defendant's actions were justified" (People v Powell, 101 AD3d1369, 1370-1371 [2012], lv denied 21 NY3d 1019 [2013]; see People v Mariano, 101AD3d 1367, 1368 [2012]; People v Boyd, 97 AD3d 898, 900 [2012]). As relevanthere, for a defendant to be entitled to a justification charge with respect to the use ofdeadly physical force, the record must contain evidence that the defendant reasonablybelieved that the victim was using or was about to use deadly physical force and that thedefendant could not safely retreat (see Penal Law § 35.15 [2] [a];People v Watts, 57 NY2d 299, 301 [1982]; People v Bell, 108 AD3d 795, 796 [2013], lvdenied 22 NY3d 995 [2013]; People v Hartman, 86 AD3d 711, 712 [2011], lvdenied 18 NY3d 859 [2011]).
Here, the strongest evidence relied upon by defendant to show that he might havebeen in danger of deadly physical force was the testimony of a nearby resident who sawthe victim shortly before the incident carrying a glass bottle and heard him state that he"should go down there and bust this bottle over [defendant's] head." Notably, however,there is nothing in the record to suggest that defendant saw the bottle or heard thevictim's statement. Moreover, the witness further testified that she saw the victim walkdown the hill and catch up with defendant's [*4]groupand that he did not smash the bottle, after which she lost sight of the group. Indeed, theonly testimony regarding the events immediately preceding the stabbing came from thevictim's two friends, whose testimony indicated that defendant's attack was sudden andseemingly unprovoked. Thus, even were the jury to have rejected those accounts asunreliable, the fact remains that the record is completely devoid of evidence thatdefendant reasonably believed that he was in imminent danger of being subjected todeadly physical force or that he did not have the opportunity to safely retreat.Accordingly, defendant was not entitled to a justification instruction with regard to anyof the charged offenses (see People v Bell, 108 AD3d at 796; People v Grady, 40 AD3d1368, 1372 [2007], lv denied 9 NY3d 923 [2007]; People v Taylor, 23 AD3d693, 694 [2005], lv denied 6 NY3d 818 [2006]; People v Siler, 288AD2d 625, 628 [2001], lv denied 97 NY2d 709 [2002]).
Lastly, we reject defendant's contention that the sentence imposed was harsh andexcessive. Despite this Court's broad authority to modify a sentence, we will not disturb alegal sentence in the absence of extraordinary circumstances or an abuse of discretion (see People v Warner, 110AD3d 1339, 1340 [2013], lv denied 22 NY3d 1091 [2014]; People v Kendall, 91 AD3d1191, 1193 [2012]). Here, defendant's record reveals increasing criminality,including a prior assault charge and a drug possession charge while on probation, and theinstant offense—which took the life of his 17-year-old victim—wascommitted less than three months after defendant was placed on intensive supervision.Upon our review of the entire record, we do not find extraordinary circumstancesrequiring a reduction of the sentence in the interest of justice. Defendant's remainingcontentions have been considered and found to be without merit.
Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgments areaffirmed.