| People v McTiernan |
| 2014 NY Slip Op 05363 [119 AD3d 465] |
| July 17, 2014 |
| Appellate Division, First Department |
[*1]
| 1 The People of the State of New York,Respondent, v Kelly McTiernan, Appellant. |
Glenn A. Garber, P.C., New York (Glenn A. Garber of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., at ex parteunsealing order; Rena K. Uviller, J., at suppression hearing and trial), rendered January26, 2010, convicting defendant, after a jury trial, of murder in the second degree, andsentencing him to a term of imprisonment of 20 years to life, unanimously reversed, as amatter of discretion in the interest of justice, and the matter remanded for a new trial,and, if the People intend to introduce defendant's statements on their case-in-chief, a newsuppression hearing.
In the early morning hours of October 12, 2007, Fain Upshur was found stabbed todeath in the West Village neighborhood of Manhattan. Defendant was arrested severaldays later and charged with his murder. The trial presented two sharply differentaccounts of the incident. The People's main witness, Abdul Flynn, testified that on theevening of October 11, 2007, he met defendant on the street and the two decided topanhandle together. Flynn asked to use defendant's cell phone, and after making a call,put the phone in his own pocket. Upshur, whom Flynn claimed not to know,subsequently arrived and the three men started walking toward Washington SquarePark.
During the walk, Flynn decided to keep defendant's phone. In furtherance of his plan,Flynn told Upshur to walk defendant down the block and then meet up with Flynn laterat a nearby bar. Defendant noticed what was going on and confronted Flynn demandinghis phone back. Upshur told defendant to "come here for a minute." The two men movedseveral feet away from Flynn, and Upshur whispered something to defendant. Flynntestified that several seconds later, defendant "just stabbed [Upshur]." According toFlynn, Upshur had nothing in his hands, never moved his arms, and did not lunge towarddefendant. Upshur subsequently died from his injuries.
Defendant presented an entirely different version of events. He testified that on thenight of October 11, 2007, while walking in the West Village, he saw Flynn sitting on astoop. Flynn asked to use defendant's cell phone, and defendant handed the phone toFlynn. After using the phone, Flynn told defendant he was waiting for a return call.Fifteen minutes passed, and defendant became nervous and asked for his phone back.Eventually, Upshur arrived with two other men; Flynn greeted Upshur as if they werefriends. Defendant again asked for his phone back. When the men did not respond,defendant believed they were going to take his phone.
[*2] The group dispersed, and Flynn and Upshur walkedaway together. Defendant followed them, demanding his phone back loudly so otherscould hear and hopefully call 911. Flynn refused to return the phone and both Flynn andUpshur told defendant to get away from them. Defendant again demanded the phoneback. Upshur "spun around and lunged" at defendant in a "very sudden motion."Defendant saw a "glint" and thought Upshur had a knife in his hand. Defendant, whohimself was carrying a knife that evening, testified that "[a]t this point, it [wa]s arobbery," and that "[i]t was very clear" that "these people were acting in concert to keepwhat was [his]." Defendant testified that fearing for his life, he blocked Upshur with hisright hand, and with his left hand, grabbed his own knife, and "poked" Upshur once inthe chest, killing him.
Based on defendant's testimony, the trial court decided to instruct the jury on thedefense of justification under two separate theories: the use of deadly physical force todefend against the use or imminent use of deadly physical force (Penal Law§ 35.15 [2] [a]), and the use of deadly physical force to defend against arobbery (Penal Law § 35.15 [2] [b]).[FN1]The jury ultimately found defendantguilty of murder in the second degree. On appeal, defendant argues that the trialcourt's initial and supplemental charges misstated the law on the use of deadly physicalforce to defend against a robbery. "In considering a challenge to a jury instruction, the'crucial question is whether the charge, in its entirety, conveys an appropriate legalstandard and does not engender any possible confusion' " (People v Hill, 52 AD3d380, 382 [1st Dept 2008], quoting People v Wise, 204 AD2d 133, 135 [1stDept 1994], lv denied 83 NY2d 973 [1994]). Where the court's charge createsundue confusion in the minds of the jurors, reversal is warranted (Hill, 52 AD3dat 382; People v Rogers, 166 AD2d 23 [1st Dept 1991], lv denied 78NY2d 1129 [1991]).
Guided by these principles, we conclude that the court's instructions on the use ofdeadly physical force in defense against a robbery were prejudicially defective. Althoughdefendant did not object to the court's erroneous charge in this regard, reversal iswarranted in the interest of justice (see People v Fuller, 74 AD2d 879 [2d Dept1980] [court's error in charge on use of force to defend against robbery warranted newtrial in interest of justice]).
Subdivision (1) of Penal Law § 35.15 provides that, except undercertain circumstances not relevant to this appeal, a defendant "may, subject to theprovisions of subdivision two, use physical force upon another person when and to theextent he . . . reasonably believes such to be necessary to defend himself. . . from what he . . . reasonably believes to be the use orimminent use of unlawful physical force by such other person."
Subdivision (2) of Penal Law § 35.15 governs a defendant's use ofdeadly physical force, and provides that a defendant may use such force, undercircumstances specified in subdivision (1), in three situations, two of which are pertinenthere. Under paragraph (a), a defendant may use deadly physical force if he reasonablybelieves that the other person is using or about to use deadly physical force (except thatthe defendant may, under certain circumstances, have a duty to retreat). Under paragraph(b), a defendant also may use deadly physical force if he reasonably believes that theother person is committing or attempting to commit, among other crimes, a robbery.
In its main charge, the court instructed the jury that "[t]he only difference betweenthe [*3]law of self-defense to repel a robbery as opposedto assault[[FN2]
] [is that] in repelling the robbery, the person has no duty to retreat." This is anincorrect statement of the law because it ignores an additional critical difference betweenthe two grounds for justification, namely, that deadly physical force may be permissibleto defend against a robbery even if the alleged robber is using only physical force, andnot deadly physical force (see People v Fuller, 74 AD2d at 879 ["a person isjustified in using deadly physical force if he reasonably believed it necessary to use suchforce in order to resist his victim's imminent use of (mere) physical force against himself,in the course of a robbery attempt"]; People v Davis, 74 AD2d 607, 609 [2d Dept1980] [jury should have been told that the defendant was justified in using deadlyphysical force if he reasonably believed it necessary to do so to resist the imminent use ofphysical force against him in the course of a robbery attempt]). The court's error wasexacerbated when it repeated this erroneous statement in response to a jury noterequesting further instructions on the defense of justification.
We reject the People's argument that the court's instructions, as a whole, conveyedthe proper standard. Although parts of the charge were correct, the court misstated thelaw on the most critical issue in the trial—whether defendant was justified in usingdeadly physical force. The charge, even when viewed in its entirety, was inconsistent andconfusing. Despite what the court stated at other points, the court's statement about thedifference between the law of self-defense as applied to a robbery as opposed to an"assault" could have left the jury with the erroneous impression that defendant could notuse deadly physical force to thwart a robbery unless deadly physical force was being usedby the robber. Furthermore, when the jury asked to be reinstructed on the law ofjustification, the court repeated its error, causing further confusion (see People vHill, 52 AD3d at 382 [reversal warranted where charge created undue confusion inthe minds of the jurors]). Defendant's claim that he believed he was being robbed went to"the heart of [his] proffered defense" (People v Soriano, 36 AD3d 527, 529 [1st Dept 2007]), andthe jury should have been permitted to evaluate that defense based on a proper legalinstruction.
Contrary to the People's argument, the evidence at trial did not overwhelminglydisprove the defense of justification, particularly as it relates to the alleged robbery. Thetrial presented a credibility contest between defendant and Flynn as to the circumstancesof Upshur's death. Defendant testified that he believed he was being robbed, and thatFlynn and Upshur were working together to keep his cell phone. Defendant furthertestified that Upshur, whom defendant thought had a knife, lunged at him when heprotested the taking of his cell phone and demanded its return. These facts, if accepted bythe jury, could establish that defendant's actions were justified based on a reasonablebelief that a robbery was taking place. The only contrary evidence as to what happened atthe moment of the stabbing came from Flynn, who testified that defendant just stabbedUpshur with no provocation. Flynn, however, had been drinking that night, had a historyof psychiatric problems, and admitted that he was at least committing a larceny againstdefendant and that Upshur was helping him to do so. Moreover, the medical evidencewas equivocal and could have supported both the People's and defendant's version ofevents. Under these circumstances, the People's case can hardly be described asoverwhelming. [*4]Accordingly, no harmless erroroccurred, and a new trial is warranted.[FN3]
Defendant also contends that his statements should have been suppressed becausethey were obtained in violation of his right to counsel. In connection with that claim,defendant argues that the court refused to permit his lawyer to give critical testimony atthe suppression hearing. Sergeant Risorto, one of the supervisors assigned to the case,testified at the hearing that on October 16, 2007, defense counsel Glenn Garber, who hadrepresented defendant in a prior matter, telephoned the police and asked to speak toDetective Terrizzi. When Risorto told him that Terrizzi was not available, according toRisorto, defense counsel then said: "I'm an attorney . . . and I don't want[defendant] questioned." Shortly after that phone conversation, Risorto told Terrizzi thatdefense counsel had called looking for him. Terrizzi testified that he could not rememberif Risorto also had told him that defense counsel said he represented defendant.According to Terrizzi, defendant later told him that defense counsel did not representdefendant on this case. Defendant subsequently waived his Miranda rights andmade statements to the police and prosecutor.
In support of the contention that defendant should not have been permitted to waivehis Miranda rights without counsel present, defense counsel sought to testify as tohis conversation with Risorto. The court declined to allow counsel to testify. Defensecounsel, whose testimony had been excluded, submitted an affirmation attesting that hetold Risorto "that I represented [defendant], and that he was not to be questioned in myabsence." The court denied the suppression motion, finding that defendant's right tocounsel did not attach when defense counsel called the police and, therefore, the right tocounsel had not been violated.
The Court of Appeals has held that "an attorney enters a criminal matter and triggersthe indelible right to counsel when the attorney . . . notifies the police thatthe suspect is represented by counsel" (People v Grice, 100 NY2d 318, 324[2003] [internal quotation marks omitted]). Once the police have reason to know that thesuspect is represented by counsel in the case under investigation, the right to counselcannot be waived unless the suspect does so in the presence of counsel (id. at320-322). An attorney does not need to enter the case in person, but can communicate hisrepresentation to the police by phone, "at which point the police are required to cease allquestioning" (id. at 321, citing People v Gunner, 15 NY2d 226, 231-232[1965]).
Here, the court erred in precluding defense counsel from testifying about the criticalconversation with Risorto. The police testimony, along with defense counsel'saffirmation, raised questions as to what defense counsel actually said to Risorto and, inparticular, whether defense counsel told Risorto that he "represented" defendant in thecase for which defendant was to be questioned. The court should not have made a factualfinding that implicitly accepted Risorto's account, without giving defendant theopportunity to challenge that account. The error, however, was harmless because thePeople did not use the statements during their case-in-chief. Therefore, reversal is notwarranted on this basis. If, at the retrial, the People intend to introduce defendant'sstatements on their case-in-chief, a new suppression hearing is required (see People v [*5]McCutheon, 96 AD3d 580, 580-581 [1st Dept2012]).
Defendant complains that the People improperly gained access to his prior sealedcases. Before defendant's arraignment in criminal court, the People applied, ex parte, foran order unsealing the case files related to two prior prosecutions of defendant, both ofwhich involved a stabbing and claim of justification. One of the cases resulted in anacquittal after trial and the other ended with a grand jury dismissal. The motion court(Berkman, J.) granted the motion for the limited purpose of allowing law enforcement todetermine whether to arrest defendant, and ordered that any other use by the Peoplewould require a further application on notice to defense counsel. The Peoplesubsequently asked the trial court to unseal the cases for the People's use at trial. The trialcourt granted the motion to the limited extent of directing that the case files be providedto the court for an in camera determination of what may be turned over to the People ifdefendant testified.
The second unsealing order, issued after the criminal proceeding commenced, shouldhave been denied (see CPL 160.50 [1] [d] [i], [ii]; Matter of Katherine B. vCataldo, 5 NY3d 196, 203-205 [2005]). However, reversal on this ground isunwarranted because defendant suffered no prejudice. The trial transcript does not showthat the People introduced any of the evidence contained in the unsealed records. Even ifthe first unsealing order was improper, defendant similarly suffered no prejudice. Thereis no support for defendant's speculative claim that the prosecutor reviewed the case filesin violation of the limitation contained in that order. Nor is there any merit to defendant'sclaim that evidence from the records may have been presented to the grand jury. Ourreview of the grand jury minutes shows that no such evidence was introduced ordiscussed during the presentation.[FN4]
The verdict was not against the weight of the evidence. In light of our remand, weneed not address defendant's remaining contentions. These claims involve issues uniqueto this trial, such as objections to the People's summation, or evidentiary issues that mayor may not arise on retrial. Concur—Tom, J.P., Renwick, Richter, Feinman andGische, JJ.
Footnote 1:The People did notobject to the court's decision to charge justification.
Footnote 2:In its charge, the courtused the term "assault" to refer to Upshur's purported use of deadly physical force.
Footnote 3:In light of our reversal inthe interest of justice, we need not decide whether the court's repeated references to"commensurate" and "excessive" force were improper or confusing. We note, however,that those terms are not contained in Penal Law § 35.15 or the criminal juryinstructions for that section.
Footnote 4:Defendant makes noother complaints on appeal about the grand jury presentation.