| People v Heron |
| 2015 NY Slip Op 05964 [130 AD3d 754] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Heron, Appellant. |
Mark Diamond, New York, N.Y., for appellant, and appellant pro se.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Judith R. Sternberg andJoseph Mogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Carter, J.), rendered May 13, 2013, convicting him of murder in the second degree andcriminal possession of a weapon in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish beyond a reasonable doubt that the defendantintended to cause the death of the victim. The defendant's intent can be inferred from hisconduct and the surrounding circumstances (see People v Bracey, 41 NY2d 296,301 [1977]; People vEdwards, 120 AD3d 1435 [2014]; People v Norris, 98 AD3d 586 [2012]; People v Bryant, 39 AD3d768, 769 [2007]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt as to the crimeof murder in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The trial court granted the defendant's request to instruct the jury with respect to thelesser-included offense of manslaughter in the first degree, but the jury convicted him ofmurder in the second degree, as charged in the indictment. Therefore, review of the trialcourt's refusal to charge the remote lesser-included offenses of manslaughter in thesecond degree and criminally negligent homicide is foreclosed (see People v Green, 5 NY3d538, 545 [2005]; People vConroy, 102 AD3d 979, 981 [2013]).
"A person is justified in using deadly force against another if he or she reasonablybelieves such to be necessary to defend himself or herself or a third person from what heor she reasonably believes to be the use or imminent use of deadly physical force by suchother person . . . 'A court need not charge the defense of justification if,considering the record in the light most favorable to the defendant, no reasonable view ofthe evidence supports it' " (People v Ojar, 38 [*2]AD3d 684, 684-685 [2007], quoting People vBennett, 279 AD2d 585 [2001]). Here, contrary to the defendant's contention, theSupreme Court properly denied his request to charge the jury regarding the justificationdefense, as no reasonable view of the evidence supported such an instruction (see People v Fowler, 101AD3d 898, 899 [2012]; People v Cotsifas, 100 AD3d 1015 [2012]; People vOjar, 38 AD3d at 685).
The defendant failed to preserve for appellate review his contention that the SupremeCourt erred in instructing the jury with respect to the elements of criminal possession of aweapon in the fourth degree (see CPL 470.05 [2]; People v Bridgeforth, 119AD3d 600, 601 [2014], lv granted 25 NY3d 988 [2015]). In any event,contrary to the defendant's contention, there was evidence showing that the knifeallegedly used in this incident constituted a dangerous knife based upon thecircumstances of its possession including the behavior of the defendant whichdemonstrated that he considered it a weapon (see Matter of Jamie D., 59 NY2d589, 591 [1983]; Matter ofEdwin O., 91 AD3d 654, 654-655 [2012]; Matter of Sean R., 33 AD3d 925, 926 [2006]). Thus, theSupreme Court did not err in instructing the jury that the defendant's possession of theknife was " 'presumptive evidence of intent to use [the] same unlawfully againstanother' " (quoting Penal Law § 265.15 [4]; Matter of SeanR., 33 AD3d at 926).
The defendant's contention that his trial attorney deprived him of his right to testifyrests on matters outside the record, and it was therefore not properly raised in his motionto set aside the verdict pursuant to CPL 330.30 (1) (see People v Perry, 266AD2d 151, 151-152 [1999]).
In his pro se supplemental brief, the defendant argues that the Supreme Court erredin closing the courtroom doors to latecomers during the trial court's instructions to thejury. That contention is unpreserved for appellate review, and in any event, without merit(see People v Colon, 71 NY2d 410, 415-416 [1988]; People v Bunker,259 AD2d 757 [1999]).
The defendant also failed to preserve for appellate review his contention that theSupreme Court failed to comply with the procedure delineated in People vO'Rama (78 NY2d 270 [1991]), in its handling of two notes by which the jury askedto see certain photographs and videotapes that were in evidence, and requested aclarification of the definition of intent. The alleged failure to comply with theO'Rama procedure did not constitute a mode of proceedings error which wouldobviate the preservation requirement because it is evident from the record that theSupreme Court complied with its core responsibilities under CPL 310.30 by givingcounsel meaningful notice of the content of the jury's notes, and providing a meaningfulresponse to the jury (see Peoplev Alcide, 21 NY3d 687, 694 [2013]; People v Cherry, 127 AD3d 879, 88-881 [2015]; People v Pressley, 115 AD3d991, 992 [2014]; People vWoodrow, 89 AD3d 1158, 1160 [2011]). In any event, the defendant'scontention that the Supreme Court failed to comply with the O'Rama procedure iswithout merit (see People vEvans, 127 AD3d 780, 782 [2015]; People v Nunez, 120 AD3d 714, 717 [2014]).
The defendant's right to be present at all material stages of the trial was not violatedby his absence during a discussion of notes received from a sworn juror regarding apotential scheduling conflict (see People v Harris, 99 NY2d 202, 212[2002]).
The defendant's claim that he was denied the effective assistance counsel is based, inpart, on matter appearing on the record and, in part, on matter outside the record and,thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 [2011]; People v Credle, 124 AD3d 792, 793 [2015]). It is notevident from the matter appearing on the record that the defendant was deprived of theeffective assistance of counsel. Accordingly, a CPL 440.10 proceeding is the appropriateforum for reviewing this claim in its entirety (see People v Rivera, 128 AD3d 857 [2015]; People v Verni, 127 AD3d887 [2015]; People v Maxwell, 89 AD3d at 1109).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are without merit. Rivera, J.P., Leventhal, Roman and Hinds-Radix,JJ., concur.