| People v Forde |
| 2016 NY Slip Op 04958 [140 AD3d 1085] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gideon Forde, Appellant. |
Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Ellen C. Abbot, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered April 30, 2013, convicting him of manslaughter in the first degree,assault in the second degree, aggravated criminal contempt, resisting arrest, andendangering the welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant'sconviction of assault in the second degree to assault in the third degree, and vacating thesentence imposed thereon; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Queens County, for sentencing on the conviction ofassault in the third degree.
The defendant was convicted of, inter alia, assault in the second degree under PenalLaw § 120.05 (9), which provides that a person is guilty of that crime when,"[b]eing eighteen years old or more and with intent to cause physical injury to a personless than seven years old, the defendant causes such injury to such person." Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish that the infant victimsustained a physical injury (seePeople v Chiddick, 8 NY3d 445, 447 [2007]). However, we agree with thedefendant that the evidence was not legally sufficient to establish that the defendant was18 years old or more when the crime was committed, as the People adduced no evidencefrom which the jury could make a determination as to the defendant's age (see Peoplev Blodgett, 160 AD2d 1105, 1106 [1990]). Accordingly, we modify the judgment byreducing the defendant's conviction of assault in the second degree to assault in the thirddegree pursuant to Penal Law § 120.00 (1), which does not include the ageof the defendant as an element.
The defendant failed to preserve for appellate review his contention that certainremarks by the prosecutor in summation deprived him of a fair trial (see CPL470.05 [2]; People v Paul,82 AD3d 1267, 1268 [2011]). In any event, while the prosecutor made an isolatedremark that improperly commented on the defendant's pre-arrest silence at the time thatthe police arrived on the scene (see People v Spinelli, 214 AD2d 135, 139-140[1995]), the impropriety was not so flagrant or pervasive as to deprive the defendant of afair trial (see People vThompson, 125 AD3d 899, 900 [2015]; People v Ward, 106 AD3d 842 [2013]; People v Philbert, 60 AD3d698 [2009]; People vAlmonte, 23 AD3d 392 [2005]).
[*2] The defendant failed to preserve for appellate review his contention that theSupreme Court improperly considered a charge he was acquitted of as a basis for thesentence imposed (see People vHarris, 101 AD3d 900 [2012]). In any event, the contention is without merit.Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d80, 83 [1982]).
The defendant's contention, raised in his pro se supplemental brief, that the grandjury should have been instructed on the defense of justification is unpreserved forappellate review, since the defendant, whose testimony before the grand jury providedthe only possible basis for a justification defense, failed to move to dismiss theindictment on that specific ground (see People v Brown, 81 NY2d 798, 799[1993]; People v Delvalle,114 AD3d 612, 613 [2014]). In any event, "[t]he failure to charge justificationconstitutes reversible error only when the defense is 'supported by a reasonableview of the evidence—not by any view of the evidence, however artificial orirrational' " (People v Rivers, 300 AD2d 63, 64-65 [2002], quotingPeople v Butts, 72 NY2d 746, 750 [1988]). Viewing the evidence before thegrand jury in the light most favorable to the defendant, there was no reasonable view ofthe evidence that supported a justification charge.
Contrary to the defendant's contention, raised in his pro se supplemental brief, thetestimony of the decedent's wife that the decedent said, "yes, he stabbed me," when sheasked whether he was hurt, was properly admitted as an excited utterance (see Peoplev Edwards, 47 NY2d 493, 497 [1979]).
The defendant's contention, raised in his pro se supplemental brief, that the evidencewas not legally sufficient to support the intent element of his conviction of manslaughterin the first degree is unpreserved for appellate review (see CPL 470.05 [2]). Inany event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish that the defendant intended to cause serious injury to the decedent (seePenal Law § 125.20 [1]).
Finally, in fulfilling our responsibility to conduct an independent review of theweight of the evidence, as requested by the defendant in his pro se supplemental brief(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt as to the crimes of manslaughter in the first degree andendangering the welfare of a child was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Moreover, we are also satisfied that the jury's finding that the Peopleestablished the elements of assault in the second degree, other than the defendant being18 years old or more, was not against the weight of the evidence. Balkin, J.P., Hall,Barros and Connolly, JJ., concur.