| People v Irving |
| 2015 NY Slip Op 06167 [130 AD3d 844] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Errol Irving, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder and Erica Horwitz of counsel),for appellant, and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, KeithDolan, and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered November 15, 2012, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
On February 4, 2011, the victim, who was a carpenter employed by the defendant'slandlord, was found stabbed to death in the house in which the defendant rented a room.The defendant was charged with his murder and, after a jury trial, was convicted ofmurder in the second degree.
At trial, the defendant testified that the victim came to the house to retrieve his toolsand to collect money from him. According to the defendant, the victim said that thelandlord owed him money and had told him to collect it from the defendant, whoallegedly owed money to the landlord. The defendant testified that after he denied owingany money to the landlord, the victim threatened "to beat [him] to get it" and said that hewould not leave until the defendant gave him the money. The defendant claimed that hestabbed the victim when the victim hit him in the face with keys, because he "was scaredto death" and thought that the victim was "going to beat [him] up and rob [him]."
On appeal, the defendant contends in his main brief and his pro se supplemental briefthat the Supreme Court erred in denying his request for a charge regarding the justifieduse of deadly physical force to defend against the use of physical force in the course ofan attempted robbery (see Penal Law § 35.15 [2] [b]; People v McTiernan, 119AD3d 465, 467-468 [2014]; People v Mitchell, 216 AD2d 331, 331 [1995];People v Fuller, 74 AD2d 879 [1980]). We agree.
" 'A trial court must charge the jury with respect to the defense ofjustification whenever, viewing the record in the light most favorable to the defendant,there is any reasonable view of the evidence which would permit the jury to concludethat the defendant's conduct was justified' " (People v Zayas, 88 AD3d 918, 920 [2011], quoting People v Fermin, 36 AD3d934, 935 [2007]; see Peoplev Petty, 7 NY3d 277, 284 [2006]; People v Mitchell, 216 AD2d at 331).Here, there was a [*2]reasonable view of the evidence tosupport the defendant's request for a justification charge pursuant to Penal Law§ 35.15 (2) (b). Viewing the evidence in the light most favorable to thedefendant, the jury reasonably could have concluded that the defendant reasonablybelieved that the use of deadly force was necessary to prevent the victim from robbinghim (see Penal Law § 35.15 [2] [b]; People v Huntley, 87AD2d 488, 494 [1982], affd 59 NY2d 868 [1983]; People v Davis, 74AD2d 607, 608-609 [1980]; see also Penal Law § 160.00; People v Pagan, 19 NY3d91, 96 [2012]; People vGreen, 5 NY3d 538, 543-544 [2005]). Contrary to the People's contention, itwould not have been irrational for the jury to credit the defendant's account of theincident (see People vSmith, 62 AD3d 411, 411-412 [2009]). Accordingly, the Supreme Court erredin denying the defendant's request for a justification charge pursuant to Penal Law§ 35.15 (2) (b). The error in failing to give the requested justification chargewas not harmless, as it cannot be said that there was no significant probability that theverdict would have been different absent this error (see People v King, 115 AD3d 873, 875 [2014]; People v Slide, 76 AD3d1106, 1110-1111 [2010]; see also People v Locicero, 87 AD3d 1163, 1164-1165[2011]).
Since there must be a new trial, we note that, although the issue is unpreserved forappellate review, the defendant correctly contends that certain comments in theprosecutors summation were improper. The prosecutor denigrated the defense bycharacterizing the defendant as a "methodical" liar who made up a "story," "acliffhanger," and "a show" (seePeople v Mehmood, 112 AD3d 850, 853 [2013]; People v Anderson, 83 AD3d854, 856-857 [2011]; People v Morrice, 61 AD3d 1390, 1392 [2009]). Inaddition, she repeatedly vouched for the strength of the People's case (see People v Marcus, 101AD3d 1046, 1048 [2012]; People v Rivera, 116 AD2d 371, 375 [1986]).Moreover, the prosecutor asked the jury to draw a conclusion concerning the victim'sactions at the time of the stabbing which was not fairly inferable from the evidence(see generally People v Ashwal, 39 NY2d 105, 109-110 [1976]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, either are without merit or need not be reached in light of ourdetermination. Skelos, J.P., Hall, Roman and Duffy, JJ., concur.