| People v Johnson |
| 2016 NY Slip Op 01098 [136 AD3d 1417] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCalvin K. Johnson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (William Pixley of counsel), fordefendant-appellant.
Calvin K. Johnson, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered October 6, 2011. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, criminal possession of a weapon in the second degree (twocounts) and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence imposed for murderin the second degree to an indeterminate term of incarceration of 15 years to life and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of one count each of murder in the second degree (Penal Law§ 125.25 [1]) and criminal possession of a weapon in the third degree(§ 265.02 [1]), and two counts of criminal possession of a weapon in thesecond degree (§ 265.03 [1] [b]; [3]). We reject defendant's contention thatCounty Court erred in denying his request to charge the defense of justification. "A trialcourt must charge the factfinder on the defense of justification 'whenever there isevidence to support it' . . . Viewing the record in the light most favorable tothe defendant, a court must determine whether any reasonable view of the evidencewould permit the factfinder to conclude that the defendant's conduct was justified. Ifsuch evidence is in the record, the court must provide an instruction on the defense" (People v Petty, 7 NY3d277, 284 [2006]; see People v Cox, 92 NY2d 1002, 1004 [1998]; Peoplev Hunt, 244 AD2d 956, 957 [1997], lv denied 91 NY2d 926 [1998]). Wheredeadly physical force is used, the evidence must establish that the defendant reasonablybelieved that he was in imminent danger of being subjected to deadly physical force, andthat he had satisfied his duty to retreat, or was under no such duty (see People vGoetz, 68 NY2d 96, 106 [1986]; see also Penal Law § 35.15[2]). Here, we conclude that there is no reasonable view of the evidence from which thefactfinder could have found that defendant's actions were justified. It was undisputed thatdefendant came out of his mother's house and shot the shirtless, unarmed victim threetimes as the victim stood with a group of people outside the fence enclosing the frontyard of the home. During his video-recorded interview with the police, which wasreceived in evidence, defendant admitted that he never observed anyone in the victim'sgroup using or about to use deadly physical force (see People v Saenz, 27 AD3d 379, 380 [2006], lvdenied 7 NY3d 762 [2006]).
We reject defendant's further contention that the court erred in denying his request tocharge the defense of justification with respect to criminal possession of a weapon in thesecond degree (Penal Law § 265.03 [1] [b]). It is well settled that thedefense of justification does not apply to that crime (see People v Pons, 68 NY2d264, 265 [1986]; People v Almodovar, 62 NY2d 126, 129-130[1984]).
[*2] We agree with defendant,however, that the sentence of an indeterminate term of incarceration of 25 years to lifefor the murder conviction is unduly harsh and severe under the circumstances of thiscase. This Court "has broad, plenary power to modify a sentence that is unduly harsh orsevere under the circumstances, even though the sentence may be within the permissiblestatutory range" (People v Delgado, 80 NY2d 780, 783 [1992]; see CPL470.15 [6] [b]). That "sentence-review power may be exercised, if the interest of justicewarrants, without deference to the sentencing court" (Delgado, 80 NY2d at 783).As a result, we may "substitute our own discretion for that of a trial court which has notabused its discretion in the imposition of a sentence" (People v Suitte, 90 AD2d80, 86 [1982]; see People vPatel, 64 AD3d 1246, 1247 [2009]). We conclude that a reduction in thesentence imposed on the murder count is appropriate under the circumstances presentedhere and, as a matter of discretion in the interest of justice, we therefore modify thejudgment by reducing the sentence imposed on that count to an indeterminate term ofincarceration of 15 years to life (see CPL 470.20 [6]).
We have considered the contentions in defendant's pro se supplemental brief andconclude that none requires reversal or further modification of the judgment.Present—Centra, J.P., Peradotto, Carni, Lindley and DeJoseph, JJ.