| People v Valentin |
| 2015 NY Slip Op 03914 [128 AD3d 428] |
| May 7, 2015 |
| Appellate Division, First Department |
[*1](May 7, 2015)
| The People of the State of New York,Respondent, v Carlos Valentin, Appellant. |
Center for Appellate Litigation, New York (Robert S. Dean of counsel), forappellant.
Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Robert A. Sackett, J.), renderedSeptember 28, 2011, convicting defendant, after a jury trial, of manslaughter in the firstdegree, and sentencing him, as a second felony offender, to a term of 20 years, reversed,on the law, and the matter remanded for a new trial.
In charging the jury on the justification defense, the court erred when, overdefendant's objection, it included the initial aggressor exception to the defense embodiedin Penal Law § 35.15 (1) (b). This concept, that defendant would not havebeen justified in using deadly physical force if he was the initial aggressor, wascompletely inapplicable to the facts of the case. Although the jury could have reasonablydetermined that defendant's use of deadly force was unjustified (where defendant used agun against the deceased, who wielded a mop handle), it could not have reasonablyfound that defendant was the initial aggressor because the evidence does not supportsuch a conclusion. There was no evidence that defendant was the first person in the fatalencounter to use or threaten the imminent use of deadly force, or any kind of force, forthat matter. On the contrary, the evidence tended to indicate either that it was thedeceased who first used force, by swinging a mop handle at defendant, or that defendantand the deceased used or threatened force simultaneously.
The dissent acknowledges the inconsistent testimony of Edward Hogan, a keyprosecution witness, with regard to the sequence of the deceased swinging the mophandle and defendant withdrawing the gun from his jacket. Nevertheless, under noiteration of Hogan's description of the events can it be concluded that defendantwithdrew the gun before the deceased swung the mop handle. At most, it can besaid that defendant withdrew the gun simultaneously with the deceased's attack. To findthat defendant was the initial aggressor would require a finding that he withdrew the gun(and threatened to use it) before the deceased swung the mop handle, an inferencethat cannot logically flow from Hogan's (inconsistent) testimony that both eventshappened simultaneously. There is no "concurrent aggressor" exception to the defense ofjustification. Accordingly, the court's initial aggressor charge was improper.
This error may not be deemed harmless. Defendant's justification defense presented aclose question of whether defendant had a reasonable basis for his use of deadly force,and the charging error could have affected the verdict because the jury might haveconcluded that [*2]defendant was the initial aggressorand, thus, not entitled to a justification defense. Contrary to the dissent, a mop handleswung at a person's head may constitute "deadly physical force," defined as "physicalforce which, under the circumstances in which it is used, is readily capable of causingdeath or other serious physical injury" (Penal Law § 10.00 [11])."Depending on how it is used, even a normally innocuous item may constitute 'deadlyphysical force' " (People v Dodt, 61 NY2d 408, 414 [1984]). Under thecircumstances of this case, a jury could reasonably conclude that the deceased used orthreatened to use deadly physical force against defendant by swinging the mop handle athim (see id.; People v Ozarowski, 38 NY2d 481, 491 n 3 [1976] [baseballbat used to strike victim's head was a "dangerous instrument"]) and that defendantreasonably believed he needed to use deadly physical force to defend himself (seePenal Law § 35.15 [2]).
Finally, although the evidence was far from overwhelming, the verdict was based onlegally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]), and thus there is no basis for dismissing theindictment. In light of our remand for a new trial, we do not address defendant'sremaining contentions. Concur—Gonzalez, P.J., Acosta, Manzanet-Daniels andClark, JJ.
Saxe, J., dissents in a memorandum as follows: I would affirm defendant's convictionfor first-degree manslaughter.
Defendant was charged with murder in the second degree, attempted murder in thesecond degree, manslaughter in the first degree, attempted assault in the first degree,assault in the second degree, and criminal possession of a weapon in the second degree,for the fatal shooting of Justin McWillis and the non-fatal shooting of Edward Hogan onJanuary 18, 2009.
The People's evidence at trial about the shooting primarily came from EdwardHogan, who acknowledged that the incident was connected to an incident from theprevious night.
Defendant's mother, Maria Rivera, owned the house at 1504 Vyse Avenue, andrented an apartment in the house to the family of Anthony Jones; the house was protectedby a locked iron gate.
A defense witness, Liliana Lara, who was also a tenant at 1504 Vyse Avenue,testified that she believed that the Jones family, like herself, had keys to the gate, but thatAnthony Jones and his friends would regularly jump the gate to gain access to theproperty and engage in conduct requiring her to call the police, such as drinking andsmoking marijuana. On the night of January 17, 2009, she saw a group of 10 to 15 men,including McWillis, chasing and cursing at defendant and his girlfriend as they rantowards the house. She saw one male holding a knife and McWillis pointing somethingmetal that looked like a gun at defendant. She called 911, but never got the chance tospeak to the officer who responded.
[*3] Officer Willie Colon testified that he drove to 1504 Vyse Avenue at 10:49 p.m. onJanuary 17, 2009, to investigate a report about a dispute with a knife. He spoke withMaria Rivera, who said some young men had been trying to climb the gate in front of herhouse and had called her names, but she denied having seen a knife or other weapon.Defendant, who was present, demanded of Officer Colon that he make a report of theincident, but Colon declined to do so because there were no injuries or property damage.According to Officer Colon, defendant then said, "I know my 2nd Amendment rights tobear arms. If I put a bullet to one of these kids' heads you guys aren't going to do shit. Idon't need the cops anymore. If I put a machete to any one of these kids' heads the copsaren't going to do shit."
Anthony Jones's sister, LaQuanda Carter, testified that Maria Rivera had refused togive the Jones family a key to the gate.
With regard to the night of the shooting, Edward Hogan testified that he was with hisfriend Justin McWillis, along with Anthony Jones and two others, when he sawdefendant leave his house across the street at 1504 Vyse Avenue and head towards abodega on the same side of the street. Hogan crossed the street and approacheddefendant, stating, "Let me speak to you for a second." Defendant replied, "What do youwant, to get shot?," to which Hogan responded, "If I had [a] beef with you, I would havejust popped off on you." After Hogan again asked to speak to him, defendant askedHogan what he wanted. Hogan then brought up the incident from the previous night, anddefendant complained that Anthony Jones and other kids had disrespected his mother bybeing loud and banging on the iron gate she had installed in front of the house.
As Hogan and defendant spoke, McWillis and his two other friends crossed the streetand approached the bodega. As they neared the entrance, defendant and McWillis lockedeyes. McWillis went inside, followed by defendant and then Hogan. Inside the bodega,defendant and McWillis got into an argument, and McWillis grabbed a mop handle.
Hogan went outside, followed by defendant and McWillis. Once outside, theycontinued to argue, but McWillis put down the mop handle. Hogan started to walk away,but turned to see McWillis pick up the mop handle again and walk towards defendant,who was heading back down the block towards his house. Hogan saw McWillis swingthe mop handle at defendant, while, simultaneously, defendant reached into his unzippedjacket for his gun. The two men were close, about 18 inches apart. Defendant pointed thegun at Hogan and fired, hitting him in the right forearm, which was raised. Hogan thensaw McWillis drop to the ground. McWillis died of a gunshot to the chest fired at closerange.
Hogan's testimony as to the point at which McWillis swung the mop handle wasinconsistent; at one point he stated that he was "pretty sure" that McWillis hit defendant"at the time before [defendant] shot me," but he also stated that he got shot beforeMcWillis hit defendant with the stick, although he did not see McWillis make contactwith defendant. When asked if McWillis hit defendant in the head with the stick frombehind and if defendant then turned around, Hogan first said that he did not know, andthen said, "That is not what happened." He also testified, "[Y]ou could say he hit himafter I got shot; but when he hit him, the gun was already pulled out." However, Hoganacknowledged that 10 days after the shooting, he told an investigator that defendant washit from behind before any shots were fired, and that he told police that defendant did notfire any shots until he was hit by McWillis.
[*4] Anthony Jones's sister, LaQuanda Carter, testified that she heard one gunshot andturned and then saw defendant shoot McWillis at close range.
Defendant was convicted only of the charge of manslaughter, relating to the death ofJustin McWillis.
Discussion
Initially, I agree with the majority that there is no merit to defendant's contention thatthe evidence is legally insufficient. "Evidence of guilt is legally sufficient if the facts,viewed in the light most favorable to the People, provide a valid line of reasoning andpermissible inferences from which the finder of fact could have rationally concluded thatthe elements of the crime were established beyond a reasonable doubt" (People v Kancharla, 23 NY3d294 [2014]). Such a valid line of reasoning is available to support the verdict.
I also agree with the majority that defendant's weight of the evidence argument is notviable. Assuming arguendo that an acquittal would not have been unreasonable (see People v Danielson, 9NY3d 342, 348 [2007]), the weight of the credible evidence supported the finding ofguilt (id.). Defendant suggests that the weight of the evidence established that theshootings were justified in that it was McWillis who provoked a fight, having threatenedhim the night before as well as on the night in question, and that he only pulled out hisgun after McWillis instigated the altercation with the mop handle, while Hogan, behindMcWillis, raised his arm as if he were holding a gun, after having previously intimatedthat he was armed with a gun. However, another line of reasoning, far more reasonable,was that the altercation was entirely verbal until the moment when McWillis followeddefendant out of the bodega and down the street and defendant turned around, and thatregardless of when McWillis swung the mop handle, defendant's shooting of McWilliswas an unjustified use of deadly physical force against a non-lethal threat.
I disagree with the majority's statement that the initial aggressor charge given by thetrial court in relation to the justification defense constituted reversible error. Thejustification defense, applicable where the use of deadly force is justified in response to areasonable belief that another is using or about to use deadly physical force (Penal Law§ 35.15 [2] [a]), is available if the defendant was not the initial aggressor, orif, in spite of being the initial aggressor, the defendant withdraws from the encounter andeffectively communicates that withdrawal to the other person (see Penal Law§ 35.15 [1] [b]; People v Petty, 7 NY3d 277, 285 [2006]; People vMickens, 219 AD2d 543 [1st Dept 1995], lv denied 87 NY2d 904[1995]).
Contrary to the majority's assessment, in my view the initial aggressor charge was notcompletely inapplicable to the facts of the case. There was, in fact, evidence that it wasdefendant who was the first to use or threaten the imminent use of deadly force. Forexample, Hogan's admittedly inconsistent testimony included assertions that would havepermitted the jury to find that when McWillis followed after defendant as he waswalking away from the bodega, he held the mop handle but did not use or threaten to useit until defendant drew his gun. Nor would the jury have been misled into thinking thatdefendant could be viewed as the initial aggressor based on the verbal exchange that ledup to the encounter; unlike the charge in People v Baez (118 AD2d 507 [1st Dept1986]), the trial court's charge here clearly instructed that "[a]rguing[ ] [and] usingabusive language . . . unaccompanied by physical threats or acts does notmake a person an initial aggressor and does not justify [*5]physical force."
The court also appropriately decided not to give the part of the initial aggressorcharge allowing an initial aggressor to rely on the justification defense if he "hadwithdrawn from the encounter and effectively communicated such withdrawal (PenalLaw § 35.15 [1] [b]." Although defendant walked away from the earlierverbal interchange, there was no evidence that he withdrew from the encounter at thepoint in the events when the verbal encounter turned (or threatened to turn) physical, thepoint at which defendant could have been found to be the initial aggressor.
More importantly, however, even if that portion of the charge was erroneous, theerror did not constitute a due process violation; indeed, it could have had no ultimateimpact. No matter what the court charged in relation to the initial aggressor issue, therewas simply no evidentiary support for a finding that defendant was justified in usingdeadly physical force against McWillis when faced with McWillis's either threatened oractual use of a mop handle. The use of deadly physical force is only justified in responseto a reasonable belief that another is using or about to use deadly physical force (PenalLaw § 35.15 [2] [a]). Even assuming that the use of a mop handle couldconceivably cause death or serious physical injury, the manner in which McWilliswielded the mop handle, by swinging it, does not qualify as creating a threat of deadlyphysical force. The jury could not reasonably have concluded, even taking into accounthis particular circumstances, that defendant could have reasonably believed that he wasin deadly peril from McWillis at the time he shot him.