| People v Every |
| 2017 NY Slip Op 00347 [146 AD3d 1157] |
| January 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDouglas R. Every, Appellant. |
William T. Easton, Rochester, for appellant.
Kirk O. Martin, District Attorney, Owego, for respondent.
Garry, J. Appeal from a judgment of the County Court of Tioga County (Keene, J.),rendered January 30, 2015, upon a verdict convicting defendant of the crime ofmanslaughter in the first degree.
In October 2013, defendant caused the victim's death by stabbing him in the chestwith a knife. The stabbing occurred in a home located in the Town of Tioga, TiogaCounty, owned by defendant and shared by defendant, the victim, and a third man namedJames Atwell. Defendant was charged with murder in the second degree and tamperingwith physical evidence. The jury acquitted defendant of the charged crimes, butconvicted him of manslaughter in the first degree as a lesser included offense of murderin the second degree. County Court denied defendant's CPL 330.30 motion to set asidethe verdict and sentenced him to 17 years in prison, to be followed by five years ofpostrelease supervision. Defendant appeals.
The fact that defendant stabbed the victim was uncontroverted. Immediately after thestabbing, defendant told three people—the victim's mother, a 911 dispatcher andthe first law enforcement officer to arrive at the scene—that he had stabbed thevictim. The officer saw the victim's body on the kitchen floor. There was blood on akitchen counter and two knives near the sink; the victim's DNA was later found on thecounter and on one of the knives. At trial, defendant raised the defense of justificationand further contended that the victim had lunged toward him and impaled himself on theknife. Upon appeal, defendant contends that his conviction was against the weight of theevidence as the People failed to prove beyond a reasonable doubt that he was notjustified in using deadly force or that he intended to cause [*2]serious physical injury.
The People presented the eyewitness testimony of Atwell, who was in his 80s andconfined to a wheelchair. Atwell testified that he and the victim, who was Atwell'scaretaker, had resided as tenants in defendant's home for several months before thestabbing occurred. On that day, defendant returned home from work at about 5:00 p.m.and began drinking alcohol. The victim, who had spent the day working in the garage,came into the house between 7:00 p.m. and 8:00 p.m. and began preparing dinner. Atwellstated that he did not believe that the victim had been drinking alcohol; however, testinglater revealed that the victim's blood alcohol content was .27. Almost immediately afterthe victim entered the house, defendant and the victim began a verbal disagreement,moving from room to room as they argued, and eventually beginning to push and hit eachother. Atwell claimed that defendant initiated both the verbal and physical altercationsand that he never saw the victim throw defendant around or push him to the floor.
Shortly before 8:00 p.m., defendant left the house, at which point the lights andelectricity went off; Atwell stated that he believed that defendant turned off the power.Five or 10 minutes later, defendant came back in, the power was turned on and theargument resumed. Atwell testified that he saw the victim walk from the laundry roominto the adjoining kitchen, with defendant following him. In the kitchen, defendantgrabbed a knife from the sink area and stabbed the victim in the chest. The victimimmediately fell to the floor and did not respond when defendant asked him to get up.Atwell stated that the victim did not lunge toward defendant before the stabbing, that hisarms were by his sides and that he had no weapon or other objects in his hands.Defendant called 911 and the victim's mother and then went outside to wait foremergency personnel.
In an interview with investigators later that night, defendant offered an account thatdiffered sharply from that of Atwell. The investigators testified at trial, and a videorecording of the interview was admitted into evidence. Defendant claimed that the victimhad initiated the altercation, initially by arguing verbally with defendant about varioussubjects. According to defendant, the victim then "went off," threw defendant aroundseveral rooms, onto the floor and against furniture, and tipped over chairs. Defendant leftthe residence to summon assistance and made several attempts to call 911, but none ofthe calls went through because the electricity had been turned off—by the victim,according to defendant—which prevented defendant's cell phone signal boosterfrom operating. Subsequent inspection of defendant's cell phone revealed that severalincomplete calls were commenced during the pertinent time period; the first three digitsof the main line for 911 dispatch were dialed three times, and one attempted call wasmade to a friend of defendant.[FN1]
Defendant told the officers that he was not fearful of the victim when he went backinto the residence, and he did not claim that the victim had a weapon or threatened to useone. He said that the victim continued to yell at him and then "came at him," at whichpoint defendant picked up the knife from a kitchen counter to defend himself. He saidthat he backed away into the adjoining laundry room, holding the knife and telling thevictim to leave him alone; the victim followed him, allegedly saying "go ahead" or "gofor it," and, in the laundry room, lunged or ran toward defendant and impaled himself onthe knife. Defendant pulled out the knife, and the victim took several steps into thekitchen, where he collapsed.
[*3] The first lawenforcement officer responding to the scene had observed that the victim had noweapons or other objects in his hands or near where his body lay on the floor. Despitedefendant's account of a violent struggle, the investigators testified that defendant's hairand clothing were not disarranged and that he had no visible bruises or injuries other thanan abrasion over one eye and a hangnail on his finger. Further, an officer who respondedto defendant's residence after the stabbing testified that the house was neat, with notipped-over furniture or signs of a struggle. Defendant told the investigators that he hadmade many previous calls to law enforcement to report the victim's abusive behaviortoward him, but the evidence established that only two of 18 calls that defendant hadplaced to police since 2004 involved the victim. In one call, defendant had complainedthat the victim had flipped over a table, and, in the other, that he did not participate inhousework.
James Terzian, a pathologist, testified that he performed an autopsy and determinedthat the victim had died as a result of blood loss caused by a single stab wound to thechest that was approximately 4
Several witnesses testified on defendant's behalf that they were familiar with thevictim's reputation in the community and that he had a tendency to becomeargumentative and verbally abusive when he had been drinking alcohol. Defendant'sexpert forensic pathologist testified that the victim had a very high blood alcohol levelthat would have impaired his judgment and coordination and interfered with his capacityto feel pain. Contradicting Terzian's testimony, he opined that it would have beenpossible for the victim to cause the chest wound by lunging forward against a knife heldby defendant; however, he agreed with Terzian that the victim would have been able tomove around or walk for 20 or 30 seconds before he collapsed. Defendant's familyphysician testified that he treated defendant after the stabbing for injuries to his wrist,hand and shoulder that defendant claimed were sustained during that night's altercation.Thomas Lazzaro, a forensic psychologist, testified that defendant suffered from ananxiety disorder and might also suffer from early-onset dementia that made him highlysensitive to events that threatened his safety and gave him a high tendency to misperceiveevents and become frightened, anxious and agitated.[FN2] Based upon these conditions and thealtercation's circumstances, Lazzaro opined that defendant could have believed that theuse of deadly physical force was necessary to protect himself.
A defendant is justified in using deadly physical force when he or she reasonablybelieves, as pertinent here, "that such force is necessary . . . to protectagainst the use or imminent use of deadly physical force" (People v Fisher, 89 AD3d1135, 1137 [2011], lv denied 18 NY3d [*4]883 [2012]; accord People v Gibson, 141 AD3d 1009, 1010 [2016];see Penal Law § 35.15 [1], [2]). "[I]t was the People's burden todisprove [the justification defense] by 'demonstrat[ing] beyond a reasonable doubt thatdefendant did not believe deadly force was necessary or that a reasonable person in thesame situation would not have perceived that deadly force was necessary' "(People v Gibson, 141 AD3d at 1010 [ellipsis omitted], quoting People v Umali, 10 NY3d417, 425 [2008], cert denied 556 US 1110 [2009]). Defendant challenges thecredibility of Atwell's testimony that defendant initiated the confrontation, noting that hewas impeached on cross-examination on several significant issues, including the extentto which he was able to see the stabbing. However, these discrepancies raised credibilityissues 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]). Critically, it was undisputed that the victim wasunarmed and that defendant was the first to escalate the confrontation by using a deadlyweapon. On this basis, the jury could reasonably have concluded that "the predicate forthe use of deadly force[, that is,] the reasonable belief that one is under deadly attack[,was] lacking" (People vJones, 3 NY3d 491, 496 [2004]). In view of this deficiency, together withdefendant's acknowledgment that he was not afraid of the victim and Atwell's testimonythat he saw defendant stab the victim while the victim's arms were at his sides, we do notfind that the jury's rejection of the justification defense was against the weight of theevidence (see People v Gibson, 141 AD3d at 1010-1011; People v Harden, 134 AD3d1160, 1163-1164 [2015], lv denied 27 NY3d 1133 [2016]; People v Lowin, 36 AD3d1153, 1155-1156 [2007], lv denied 9 NY3d 847 [2007]).
As for defendant's claim that the People failed to prove that he intended to causeserious physical injury, this "was a factual question that the jury could infer from hisconduct and the surrounding circumstances," including Atwell's account of defendant'sactions, the severity of the wound, the expert testimony that it could not have beeninflicted by the victim impaling himself on the blade, and defendant's multiple statementsthat he stabbed the victim (People v Harden, 134 AD3d at 1163; see People vGibson, 141 AD3d at 1012; People v Hamilton, 133 AD3d 1090, 1091-1092 [2015]; People v Zindle, 48 AD3d971, 973 [2008], lv denied 10 NY3d 846 [2008]). Accordingly, we find thatthe verdict was not against the weight of the evidence.
Defendant next contends that County Court erred in precluding certain testimonyregarding the victim's prior threats of violence, threatening conduct and reputation forviolence, and that this resulted in a denial of his constitutional right to present a defense.He further contends that his counsel's failure to preserve these errors for review byasserting a constitutional right to introduce the excluded evidence constituted adeprivation of the effective assistance of counsel (see People v Angelo, 88 NY2d217, 222 [1996]; People vSimonetta, 94 AD3d 1242, 1245 n 2 [2012], lv denied 19 NY3d 1029[2012]).
First, in this regard, defendant challenges the exclusion of potential testimony thatthe victim had threatened a witness with a hammer and a nail gun. A defendant chargedwith homicide may "introduce evidence of the victim's prior specific acts of violence ofwhich the defendant had knowledge, provided that the acts sought to be established arereasonably related to the crime of which the defendant stands charged" (People vMiller, 39 NY2d 543, 551 [1976]). Here, defendant did not have specific knowledgeof the prior incidents, but knew only that the victim had threatened the witness withunspecified "instruments"; moreover, because there was no evidence that the victimthreatened defendant or had anything at all in his hands at the time of the stabbing, theprior conduct "was not reasonably related in . . . quality to the presentcrime[ ]" (People v Sawyer, 274 AD2d 603, 607 [2000], affd 96 NY2d815 [2001]).
Next, County Court precluded testimony that defendant had called a friendapproximately two months before the incident and told her that he had locked himself inthe bedroom due to the victim's behavior; the friend would have testified that she couldhear the victim shouting in the background and later drove to the house to pick updefendant. Although a defendant may introduce evidence of threats made against him orher by a victim whether or not the threats were communicated to the defendant, there wasno evidence here that the victim made any threats during the prior encounter (see People v Petty, 7 NY3d277, 285 [2006]; People v Miller, 39 NY2d at 549). Moreover, the precludedtestimony would have been cumulative to other testimony regarding the victim'sreputation for being verbally abusive when he drank alcohol.
Finally, defendant argues that County Court improperly precluded testimony aboutthe victim's reputation for violence. However, the proposed testimony was that of awitness who would have said that the victim pushed him around on a single occasion,and there was no evidence that defendant was aware of this incident (see People v Fore, 33 AD3d932, 933 [2006], lv denied 7 NY3d 925 [2006]). A defendant is not deprivedof meaningful representation when his or her counsel fails to raise a claim "that has littleor no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004]; see People v Desmond, 118AD3d 1131, 1135-1136 [2014], lv denied 24 NY3d 1002 [2014]). For thereasons set forth above, had the challenged issues been preserved for our review, wewould have found no error.
Defendant asserts a related claim that he was deprived of a fair trial by prosecutorialmisconduct, and deprived of meaningful representation by his counsel's failure to objectto the alleged improprieties. As with the evidentiary challenges, a failure to raise issuesthat lack merit does not constitute ineffective assistance; similarly, had these challengesbeen preserved, we would have found no impropriety. First, defendant contends that thePeople improperly suggested that defendant had a duty to retreat in his own home byeliciting testimony from the interviewing officers to the effect that defendant admittedthat he could have avoided the confrontation by going to a nearby relative's home,putting down the knife or leaving the house. This testimony was, however, highlyprobative as to whether defendant reasonably believed that he was facing imminentdanger of deadly physical force, and whether the nature and extent of the force used wasreasonable under the circumstances. "The evidence of alternatives was admissible since itwas relevant to the reasonableness of defendant's perceptions and not to the question ofwhether defendant was obligated to retreat" (People v Emick, 103 AD2d 643,658 [1984]). For similar reasons, we do not find the People's remarks during summationregarding the alternatives available to defendant to be improper. Further, the remarksduring summation on Atwell's credibility were fair responses to suggestions in thedefense's summation that his testimony was inconsistent and incredible, and did notconstitute improper vouching (see People v Wlasiuk, 136 AD3d 1101, 1103 [2016], lvdenied 27 NY3d 1009 [2016]). If defendant's challenges had been preserved, wewould have found that the few remaining challenged remarks, even if better left unsaid,"did not rise to the flagrant and pervasive level of misconduct which would deprivedefendant of due process or a fair trial" (People v Heiserman, 127 AD3d 1422, 1424 [2015][internal quotation marks and citation omitted]).
We reject the contention that defendant received ineffective assistance when hiscounsel failed to object to the portion of County Court's justification instruction thataddressed the definition of a "dwelling." During the charge conference, the court advisedcounsel that it intended to instruct the jury on the justification defense, and the court gavedefense counsel the choice whether to include a paragraph in the pattern instruction thataddresses a defendant's duty to retreat in his or her home, or to entirely avoid referencesto the duty to retreat. Defense counsel made the strategic choice to include this language,and, consistent with this [*5]determination, the courtcharged the jury that defendant was not required to retreat if he was in his dwelling andwas not the initial aggressor. Defendant now contends that the court erred by including aportion of the pattern instruction stating that "whether a particular location is part of a[d]efendant's dwelling depends on the extent to which the [d]efendant and personsactually sharing living quarters with the [d]efendant exercise[ ] exclusive possession andcontrol over the area in question." Defendant contends that this language did not apply inlight of the shared residence and that, since the crime took place in a shared area ofdefendant's home, the language may have confused the jury and led it to conclude,incorrectly, that defendant had a duty to retreat from the confrontation.
As defendant's counsel raised no objection to the inclusion of the challengedlanguage, this claim is unpreserved (see CPL 470.05 [2]; People v Green, 119 AD3d23, 30 [2014], lv denied 23 NY3d 1062 [2014]). However, if counsel hadpreserved the claimed error, we would not have disturbed the verdict. Reversal on thebasis of a confusing jury instruction "is appropriate—even if the standard criminaljury instruction is given—when the charge, read as a whole against thebackground of the evidence produced at trial, likely confused the jury regarding thecorrect rules to be applied in arriving at a decision" (People v Walker, 26 NY3d 170, 174-175 [2015] [internalquotation marks, ellipsis and citations omitted]). We find no such likelihood of confusionhere. We agree that the parenthetical language was not applicable to defendant's sharedresidence (see People v Jones, 3 NY3d at 495; People v Hernandez, 98NY2d 175, 182-183 [2002]), and thus should not have been included. Nevertheless, allof the trial testimony unequivocally described the residence where the crime occurred asdefendant's home, and there was no suggestion at any time in the testimony or argumentsthat the shared use of the kitchen by defendant and his tenants altered that fact or gaverise to any duty to retreat. As previously noted, the evidence and arguments pertaining toalternatives available to defendant other than stabbing the victim were addressed towhether defendant was the original aggressor and whether his actions and perceptionswere reasonable; the record demonstrates that no argument was made at any time that hehad a duty to retreat in his own dwelling. The evidence disproving the justificationdefense—in particular, the undisputed proof that the victim never had orthreatened to use a weapon—was overwhelming, and we find "no reasonablepossibility that the verdict would have been different had the charge been correctlygiven" (People v Petty, 7 NY3d at 286; see generally People v Crimmins,36 NY2d 230, 241-242 [1975]). Counsel's failure to object to this harmless error, withoutmore, "was not so serious as to compromise defendant's right to a fair trial" and did notconstitute ineffective assistance (People v Gunney, 13 AD3d 980, 983 [2004], lvdenied 5 NY3d 789 [2005]; accord People v Fauntleroy, 108 AD3d 885, 887 [2013],lv denied 21 NY3d 1073 [2013]).
We find no merit in defendant's contention that he received ineffective assistancewhen his counsel failed to object to medical testimony describing the victim's death as a"homicide." It is well established that "[s]uch characterization improperly invade[s] theprovince of the jury" (People vOdell, 26 AD3d 527, 529 [2006], lv denied 7 NY3d 760 [2006]; accord People v Heath, 49AD3d 970, 973 [2008], lv denied 10 NY3d 959 [2008]). Contrary todefendant's contention, however, counsel did promptly object to the coroner's testimonythat the victim's death was ruled a homicide, and this objection was sustained.[FN3] Counsel did not object toTerzian's testimony that "[t]he manner of death, in [his] opinion, was homicide."However, Terzian immediately qualified this testimony by stating that this was hismedical opinion; he [*6]further explained the meaning ofthe term "manner of death" and distinguished it from the cause or mechanism of death. Inview of these qualifications, "if we were to review this error . . . , we wouldfind it to be harmless" (People v Odell, 26 AD3d at 529). Despite counsel'sfailure to object to two harmless errors, he pursued a cogent trial strategy of challengingthe credibility of the only eyewitness, made appropriate motions, vigorouslycross-examined the People's witnesses and advanced reasonable defenses in arguing thatthe death was justified or, in the alternative, caused by the victim's own actions.Considering the evidence as a whole, we find that defendant received meaningfulrepresentation (see People vBlake, 24 NY3d 78, 81-82 [2014]; People v Ramos, 133 AD3d 904, 909 [2015], lvdenied 26 NY3d 1149 [2016]).
Finally, defendant contends that his sentence is harsh and excessive. We note that thesentence was eight years less than defendant could have received. In view of the violentnature of his crime and his failure to express remorse, we find no abuse of discretion orextraordinary circumstances warranting modification in the interest of justice (see People v Hartman, 86AD3d 711, 713 [2011], lv denied 18 NY3d 859 [2011]).
McCarthy, J.P., Rose and Mulvey, JJ., concur.
Aarons, J. (dissenting). While I agree that the verdict was not against the weight ofthe evidence, in my view, defendant received the ineffective assistance of counsel whendefense counsel's cumulative errors essentially nullified defendant's justification defenseand removed the focus of the case away from defendant's alleged justified acts andtowards a nonexistent duty to retreat. Accordingly, I respectfully dissent.
Defendant's defense centered on the theory that he was justified in stabbing thevictim after their altercation. James Atwell, who resided in defendant's home along withthe victim, testified that he did not see the victim act aggressively towards defendant.However, defendant, who did not testify at trial, provided a contrasting version of theevents at issue through his oral statements given to the police investigators after thestabbing incident. Prior to the stabbing, defendant and the victim were involved in averbal, profanity-laced altercation in defendant's home. This altercation escalated withthe victim physically assaulting defendant and throwing him to the ground and againstthe fireplace and wood stove. A chair fell down but defendant explained that hesubsequently picked it up because he did not like the room to be messy. Defendant wentoutside so that he could call 911, which he had done in the past based upon the victim'sprior behavior. Defendant's calls, however, did not go through because the victim turnedoff the power from the inside of the house and prevented defendant's cell phone signalbooster from operating.
When defendant subsequently returned inside his home, he initially was not fearfulof the victim. The victim, however, continued to scream at defendant. They resumed theiraltercation and the victim "came at [defendant]." Defendant thus grabbed a knife fromthe kitchen counter out of the need to protect himself and backed away into the laundryroom. Defendant told the victim to stay away from him, but the victim refused. Eventhough the victim was unarmed, the victim "challenged him," "egg[ed] him on after hehad the knife in his hand" and told him to "go for it." The victim then lunged atdefendant and impaled himself on the knife that defendant was holding. As aconsequence of their altercation, defendant complained of bruising and had an abrasionabove his eye and a hangnail on his finger.
James Terzian, a pathologist who performed the autopsy of the victim, testified thatthe victim had some bruises on the knuckles of his right hand and a small laceration onhis left middle finger. Terzian also testified that the toxicology report revealed marihuanain the victim's body and that the victim had a blood alcohol level of .27.
Defendant offered the expert testimony of Thomas Lazzaro, a forensic psychologist,who testified that defendant suffered from an anxiety disorder that made him"hyper-vigilant and very aware of any circumstances that might threaten him." Lazzaroalso opined, within a reasonable degree of psychological certainty, that it was reasonablefor defendant to believe that he had to defend himself against serious physical injury.More critically, defendant's expert forensic pathologist testified that it was possible forthe victim to have impaled himself on the knife held by defendant and that the victim'swound was "consistent with a defensive wound."
In my view and contrary to the majority's position, the evidence disproving thejustification defense was not overwhelming inasmuch as the jury could have reasonablybelieved that defendant was justified in using deadly force to protect himself given thatdefendant had called the police in the past regarding the victim's behavior, defendant andthe victim had a physical and verbal altercation resulting in an abrasion abovedefendant's eye and an injury to his finger, defendant felt the need to grab a knife toprotect himself from the victim who continued to "come at him" and defendant's expertsconcluded that it was reasonable for defendant to believe that he had to defend himselffrom the victim and that the victim could have impaled himself on the knife. Indeed,these facts are in marked contrast to the events described by Atwell, the victim's86-year-old cousin who was sitting in a wheelchair and admittedly could not see into thelaundry room where the stabbing allegedly took place.
Because the justification defense was crucial to defendant, evidence of whetherdefendant had the option to retreat from his home should have never been brought to thejury's attention inasmuch as defendant had no such duty to retreat (see People v Jones, 3 NY3d491, 496 [2004]; People v Ward, 162 AD2d 566, 567 [1990]). Defensecounsel, however, allowed such evidence to be admitted at trial and argued by the Peopleduring opening and closing statements without any restraints or limiting instructions. Assuch, defense counsel's inaction let the justification defense slip away before the firstwitness even testified. Based upon such inaction, in my view, defendant was deprived ofmeaningful representation inasmuch as "[defense counsel's] assistance was [not]consistent with [that] of a reasonably competent attorney" (People v Thiel, 134 AD3d1237, 1240 [2015] [internal quotation marks and citation omitted], lv denied27 NY3d 1156 [2016]), and the record reveals "the absence of strategic or otherlegitimate explanations" for his deficient conduct (People v Caban, 5 NY3d 143, 152 [2005] [internalquotation marks and citation omitted]).
First, as defense counsel knew that defendant spoke with the police investigatorsafter the stabbing incident at issue and that he was questioned as to whether he couldhave retreated from his home, no legitimate strategy can be gleaned by defense counsel'sfailure to request that portions of defendant's oral statements given to the policeinvestigators be redacted to exclude any statements related to whether defendant shouldhave retreated from his home, or, at the very least, that a limiting instruction be givenwith respect to such statements. During defendant's interview, the police investigatorsrepeatedly inquired about defendant's decision to reenter the house, when he could havewalked down the road to his father's or neighbor's house. The investigator questioneddefendant at length about various scenarios involving defendant's ability to retreat from,or remain outside, his home. The investigator further commented to defendant [*7]that it did not make sense to him that defendant returnedinside the house given that he could have retreated.
Notwithstanding the prejudicial nature of these statements and comments, defensecounsel made no pretrial attempt to exclude them and likewise failed to seek a limitinginstruction with respect to them (see People v Dove, 287 AD2d 806, 807 [2001]).The voluntariness of defendant's statements to the police investigators does not preventdefense counsel from seeking to redact prejudicial information therein (see e.g.People v Letendre, 247 AD2d 796, 796-797 [1998]) and, therefore, in my view, noreasonable attorney could have thought that such a preclusion motion would not havebeen worth making (see Peoplev Ramsey, 134 AD3d 1170, 1172 [2015]; People v Langlois, 265 AD2d683, 684 [1999]). Here, as soon as the jury heard the interview wherein the investigatorspreyed on defendant's choice not to retreat, the idea that defendant had the option toleave his home was implanted in the juror's minds. With the jury's attention tethered tothe notion that defendant should have retreated—when defendant had noobligation to do so because he was in his home when the stabbing occurred—thejury was free to disregard any of the evidence demonstrating that defendant was justifiedin stabbing the victim. When the central component of a defense involves portraying thata defendant was justified in stabbing a victim, detracting away from such defense was"not a misguided though reasonably plausible strategy decision but clear ineffectivenessof counsel" (People v Bell, 48 NY2d 933, 935 [1979]; People v Brugman,111 AD2d 562, 563 [1985]).
Defense counsel also allowed the People to solicit testimony, and argue onsummation, that defendant should have retreated from his own home, all once againwithout any objection or a request for a limiting instruction (see People v Ramsaran, 141AD3d 865, 871 [2016], lv granted 28 NY3d 1075 [2016]). Even though thejury had already heard about defendant's chance to retreat based upon defendant'sinterview with the police investigators, the People specifically asked, during the directexamination of one of the investigators, "Did [defendant] say anything about whether hehad the opportunity to retreat?" The investigator responded that "[defendant] said hecould have retreated. He said he could have gone to a residence down the road, he couldhave gone back outside. And he also said that he wished he had done that." Anotherinvestigator was similarly questioned on this topic of defendant's ability to retreat andtestified that defendant mentioned that he had the opportunity to leave his home beforethe stabbing incident. Indeed, the People expounded on this point in their summation byarguing that one of defendant's options was to leave and go down the road to his father'shouse as opposed to reentering his home. Such evidence of defendant's ability to retreatmay have been admissible for other purposes, as the majority notes, but it was alsosignificantly prejudicial to defendant. As such, it was even more imperative that defensecounsel take the necessary steps to limit such prejudice. No steps, however, were takenby defense counsel (see Peoplev Smith, 140 AD3d 1403, 1404 [2016]; People v Ramsey, 134 AD3d at1172; People v Fleegle, 295 AD2d 760, 762-763 [2002]; People vLanglois, 265 AD2d at 685).
Furthermore, defense counsel never objected to County Court's erroneousqualification of the home exception to the duty to retreat charge. During the chargeconference, County Court stated that it could omit any reference as to defendant's duty toretreat or have the jury instructed about the duty to retreat with the home exception. Withthe issue of the duty to retreat having permeated the trial, defense counsel was essentiallycompelled to request the latter. As such, after charging the jury on defendant's duty toretreat and the home exception thereto, County Court qualified the home exception byinstructing the jury that "[t]he determination of whether a particular location is part of a[d]efendant's dwelling depends on the extent to which the [d]efendant and personsactually sharing living quarters with the [d]efendant exercise[ ] exclusive possession andcontrol over the area in question." The majority acknowledges that County Court [*8]should not have included this language, but views it asharmless error. I disagree. Defendant was entitled to have the jury charged with thecorrect standard of law (seePeople v Medina, 18 NY3d 98, 104 [2011]). By instructing the jury that it had todetermine the extent over which defendant exercised control and possession of the areain question, County Court gave the misleading impression that defendant may have hadthe duty to retreat from his own home. County Court's instruction invited the jury tomake a factual determination as to whether the area where the stabbing occurred was partof defendant's home when, as a matter of law, it was not required to do so (cf. Peoplev Santarelli, 99 AD2d 594, 594 [1984]). In other words, County Court's instructionpermitted the jury to impose upon defendant a duty to retreat when, as discussed, noneexisted at all (see People v Emick, 103 AD2d 643, 661 [1984]; cf. People vJohns, 122 AD2d 74, 76 [1986]).
While the majority concludes that all of the trial testimony demonstrated that thestabbing took place in defendant's home, in my view, this does not render the errorharmless. It does not change the fact that County Court gave a charge that was whollyinapplicable to the facts and unnecessary as a matter of law. Moreover, County Courtcompounded the error by reinstructing the jury, upon its request, with the sameinapplicable qualification of the home exception to the duty to retreat charge (see People v McTiernan, 119AD3d 465, 468 [2014]; People v Primus, 178 AD2d 565, 566 [1991]).Because the justification defense was critical to defendant (see People v Phillips, 32 AD3d1343, 1344 [2006]), and inasmuch as the evidence disproving the justificationdefense was sharply contested at trial and not overwhelming (see People v Powell, 101AD3d 1369, 1373 [2012], lv denied 21 NY3d 1019 [2013]; comparePeople v Jones, 3 NY3d at 497), County Court's jury charge, in my view, was notharmless error (see generallyPeople v Walker, 26 NY3d 170, 174-175 [2015]) and required anobjection.
Finally, defense counsel raised no objection when Terzian testified that the victim'sdeath was a homicide. An objection to this testimony would not have been without meritinasmuch as "[s]uch characterization improperly invaded the province of the jury" (People v Odell, 26 AD3d527, 529 [2006], lv denied 7 NY3d 760 [2006]; see People v Heath, 49 AD3d970, 973 [2008], lv denied 10 NY3d 959 [2008]). Nor do I view the error inTerzian expressing this opinion as harmless, because, as discussed, the evidencedisproving the justification defense was not overwhelming.
In sum, defense counsel's errors—failing to seek exclusion or request alimiting instruction regarding the offending portions of defendant's statements to thepolice investigators concerning defendant's ability to retreat, failing to object or request alimiting instruction to the People's questions and summation pertaining to defendant'sduty to retreat, failing to object to County Court's improper jury charge regarding theduty to retreat and the home exception thereto and failing to object to Terzian's testimonythat the victim's death was a homicide—would not rise to the level of ineffectiveassistance of counsel when viewed in isolation. Cumulatively, however, they depriveddefendant of meaningful representation in this case where the evidence disproving thejustification defense was not overwhelming (see People v Fisher, 18 NY3d 964, 967 [2012]; People v Bush, 107 AD3d1302, 1303 [2013]; People v Lindo, 167 AD2d 558, 559 [1990]). For thesereasons, I would reverse the judgment of conviction and remit the matter for a newtrial.
Ordered that the judgment is affirmed.
Footnote 1:The testimonyestablished that the main line for 911 dispatch is 687-1010; the phone revealed that "687"had been dialed three times.
Footnote 2:On cross-examination,Lazzaro qualified his testimony regarding early-onset dementia, acknowledging that hehad not conducted a medical evaluation and could not testify with a reasonable degree ofpsychological certainty to this effect.
Footnote 3:The stated ground forcounsel's objection was that only a physician can state a cause of death with reasonablemedical certainty.