| People v Gibson |
| 2016 NY Slip Op 05668 [141 AD3d 1009] |
| July 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael J. Gibson, Also Known as Jo-Jo,Appellant. |
George J. Hoffman Jr., Albany, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri ofcounsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered October 30, 2012, upon a verdict convicting defendant of the crimes ofassault in the second degree and criminal possession of a weapon in the third degree.
In September 2010, defendant allegedly stabbed the victim once with a knife in theabdomen during a late night street altercation in the Village of Endicott, Broome County.Following a trial, the jury acquitted defendant of attempted assault in the first degree, butconvicted him of assault in the second degree and criminal possession of a weapon in thethird degree. Thereafter, County Court determined that defendant was a second felonyoffender—a status predicated on a 2003 Oklahoma conviction—andsentenced defendant to an aggregate prison term of six years, followed by five years ofpostrelease supervision. Defendant appeals.
Defendant contends that the verdict was against the weight of the evidence in that,first, the evidence overwhelmingly supported his justification defense and, second, thePeople did not prove that he intended to cause injury to the victim. We disagree. "Use ofdeadly physical force is justified when . . . a defendant reasonably believesthat such force is necessary . . . to protect against the use or imminent use ofdeadly physical force" (People vFisher, 89 AD3d 1135, 1137 [2011], lv denied 18 NY3d 883 [2012]).As defendant raised the justification defense, it was the [*2]People's burden to disprove it by "demonstrat[ing] beyonda reasonable doubt that . . . defendant did not believe deadly force wasnecessary or that a reasonable person in the same situation would not have perceived thatdeadly force was necessary" (People v Umali, 10 NY3d 417, 425 [2008], certdenied 556 US 1110 [2009]).
The People presented the testimony of three eyewitnesses to the stabbing, includingthe victim, the victim's wife and a passerby who observed the incident. The victimtestified that defendant and the victim's ex-girlfriend approached the victim and his wifeon the street. Defendant demanded that the victim return a camera that he believed thevictim had taken from him at a party earlier in the evening. At some point, the victimpushed defendant, and the two engaged in a "shoving match." The victim stated that heemptied the contents of his pockets, including a box cutter, and gave them to his wifebecause he believed a fight was imminent. When the two men stopped pushing eachother, the victim became aware that he was bleeding, and then realized that he had beenstabbed after he saw defendant holding a butterfly knife. According to the victim,defendant stated that "he didn't mean it," but left the area without offering help.Following the confrontation, police found a closed box cutter—with a lock thatprevented it from being opened with one hand—in the pocket of the pants that thevictim had been wearing. The victim underwent surgery for a stab wound in theabdominal area, was hospitalized for approximately two weeks and was prescribed painmedication.
On cross-examination, the victim acknowledged that he had initially lied to police bytelling them that he did not have the box cutter, because he did not want to get intotrouble. He further stated that he could not remember the confrontation clearly becauseeveryone involved was "pretty drunk," and conceded that he was "not sure" whether hehad tried to use his box cutter on defendant, and that, while he did not remember, he"possibly" could have pulled it on defendant first. In her testimony, the victim's wifedenied that the victim gave her the contents of his pockets during the confrontation. Shestated that she did not see the victim take out a weapon at any point. She said that, as thevictim and defendant scuffled, she saw defendant push the victim in the stomach. Thevictim then attempted to react but was unable to do so, and the wife realized that he wasbleeding.
The passerby, who did not know defendant or the victim before the incident, testifiedthat he observed the confrontation from a distance of approximately 6 to 10 feet. Hedescribed defendant and the victim by race and height, testifying that the shorter man,who was about 5
Defendant did not testify, but his sister testified that defendant had told her after thefight that the victim had pulled out a box cutter and tried to cut him with it during thestruggle and that defendant had reacted by stabbing him with the butterfly knife. Thesister and her husband further testified that the butterfly knife was not defendant's, butbelonged instead to the sister's husband, who had asked defendant to hold onto ittemporarily that night.
On these facts, as the People concede, a different verdict would not have beenunreasonable (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Zindle, 48 AD3d971, 972 [2008], lv denied 10 NY3d 846 [2008]). Nevertheless, viewing theevidence in a neutral light and mindful of the deference accorded "to the fact-finder'sopportunity to view the witnesses, hear the testimony and observe demeanor" (Peoplev Bleakley, 69 NY2d at 495; see People v Newland, 83 AD3d 1202, 1205 [2011], lvdenied 17 NY3d 798 [2011]), we find no reason to disturb the jury's rejection of thejustification defense. Despite the evidence that the victim had the box cutter on hisperson during the struggle and the equivocal nature of his statements about it, thetestimony of the passerby and the victim's wife indicated that he did not wield it beforedefendant stabbed him, and there was no clear proof to the contrary (compare Peoplev Young, 240 AD2d 974, 977 [1997], lv denied 90 NY2d 1015 [1997]).Further, there was no proof that defendant was unable to retreat "with complete personalsafety" (Penal Law § 35.15 [2] [a]; see People v Young, 240 AD2dat 976). Any inconsistencies in the testimony as to who was the aggressor at each stage ofthe conflict were for the jury to resolve (see People v Green, 121 AD3d 1294, 1295 [2014], lvdenied 25 NY3d 1164 [2015]; People v Vanderhorst, 117 AD3d 1197, 1199-1200 [2014],lv denied 24 NY3d 1089 [2014]).
"Defendant's intent to cause injury was a factual question that the jury could inferfrom his conduct and the surrounding circumstances" (People v Harden, 134 AD3d1160, 1163 [2015] [citations omitted], lv denied — NY3d —, 2016 NY Slip Op 98338(U) [June 7, 2016]; see People v Zindle, 48 AD3d at973). The surgeon who treated the victim at the hospital testified that the front portion ofthe victim's stomach was "completely penetrated" and that his liver was cut, as well as theligament supporting the stomach and colon. The surgeon testified that such an injurywould require "considerable force" and, if left untreated, would potentially result in"[s]epsis, shock [and] death." This evidence, as well as the testimony that describeddefendant's "pushing" movement at the moment of the stabbing, established defendant'sintent to cause injury (see People v Newland, 83 AD3d at 1204; People v Francis, 83 AD3d1119, 1122 [2011], lv denied 17 NY3d 806 [2011]). Accordingly, we findthat the verdict was not contrary to the weight of the evidence (see People v Taylor, 118 AD3d1044, 1045-1047 [2014], lv denied 23 NY3d 1043 [2014]; People v Brown, 100 AD3d1035, 1036-1037 [2012], lv denied 20 NY3d 1009 [2013]; compare People v Morgan, 99AD3d 622, 622-623 [2012]; People v Jones, 59 AD3d 864, 867 [2009]).
The People concede that County Court erred in sentencing defendant as a secondfelony offender, as the elements of his predicate Oklahoma felony were not "equivalentto those of a New York felony" (People v Gonzalez, 61 NY2d 586, 589 [1984];see Penal Law § 70.06 [1] [b] [i]; People v Jurgins, 26 NY3d607, 613 [2015]). As relevant here, the inquiry regarding equivalency is "limited to acomparison of the crimes' elements as they are respectively defined in the foreign andNew York penal statutes" (People v Muniz, 74 NY2d 464, 467-468 [1989]; accord People v Parker, 121AD3d 1190, 1191 [2014]). Defendant was previously convicted under an Oklahomastatute prohibiting possession of a firearm by a felon; however, operability is not arequired element of the Oklahoma statute (see 21 Okla Stat Ann§§ 1283 [A]; 1284; Sims v State, 762 P2d 270, 272 [OklaCrim App 1988]; Maixner v Rudek, 492 Fed Appx 920, 923 [10th Cir 2012]). InNew York "[o]perability is a required element of the crime of criminal possession of ahandgun, [*4]rifle or shotgun" (People v Rowland, 14 AD3d886, 887 [2005]; see People v Longshore, 86 NY2d 851, 852 [1995]). Thus,as the comparable New York statute requires an element that the Oklahoma crime doesnot, defendant's Oklahoma conviction cannot support a finding that he was a secondfelony offender (see Penal Law § 265.02 [1]; People vParker, 121 AD3d at 1191; People v Maglione, 305 AD2d 426, 426-427[2003]). Accordingly, defendant's sentence must be vacated. In view of thisdetermination, we need not address his contention that his sentence was harsh andexcessive.
Lahtinen, J.P., McCarthy, Clark and Mulvey, JJ., concur. Ordered that the judgmentis modified, on the law, by vacating the sentence imposed; matter remitted to the CountyCourt of Broome County for resentencing; and, as so modified, affirmed.
Footnote *:The evidence establishedthat the victim stood approximately six feet tall, weighed 200 pounds and was taller thandefendant. Although the passerby was unable to fully confirm the identification at thetime of trial, the evidence and other testimony left no doubt that defendant and the victimwere the participants in the confrontation that he had witnessed.