| People v Sanchez |
| 2017 NY Slip Op 01718 [148 AD3d 831] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aladdin Sanchez, Also Known as "Shags,"Appellant. |
Gary Greenwald & Partners, P.C., Chester, NY (David A. Brodsky of counsel), forappellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman,J.), rendered August 5, 2014, convicting him of manslaughter in the first degree, assault in thefirst degree, assault in the second degree, and criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofmanslaughter in the first degree, assault in the first degree, and assault in the second degree, andthe sentences imposed thereon, and dismissing the count in the indictment charging murder in thesecond degree, without prejudice to the People to re-present any appropriate charges to anothergrand jury (see People v Beslanovics, 57 NY2d 726 [1982]); as so modified, thejudgment is affirmed, and a new trial is ordered on the counts of the indictment charging thedefendant with assault in the first degree and assault in the second degree.
The defendant was convicted of manslaughter in the first degree for the June 15, 2013,shooting death of Ines Amigon. He was also convicted of assault in the first degree and assault inthe second degree for the shootings of Rolando Baldemar and Sandy Vivaldo, respectively, aswell as criminal possession of a weapon in the second degree.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord 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]).Upon reviewing the record here, we are satisfied that the verdict was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The County Court properly denied the defendant's request to charge manslaughter in thesecond degree as a lesser-included offense of murder in the second degree since, viewing theevidence in the light most favorable to the defendant, there was no reasonable view of theevidence [*2]that would support a finding that the defendantacted recklessly (see People vDickerson, 67 AD3d 700 [2009]).
The defendant's contention that the County Court's charge on accomplice corroboration wasimproper is without merit (see People vArena, 69 AD3d 867 [2010]).
However, we agree with the defendant's contention that the County Court should havesubmitted a justification defense charge to the jury with respect to the crimes of manslaughter inthe first degree, assault in the first degree, and assault in the second degree.
"[A] charge on justification is warranted whenever there is evidence to support it" (Peoplev McManus, 67 NY2d 541, 549 [1986]). Indeed, "if on any reasonable view of the evidence,the fact finder might have decided that defendant's actions were justified" (People vPadgett, 60 NY2d 142, 145 [1983]), "the trial court should instruct the jury as to the defenseand must when so requested" (id. at 144-145). In determining whether a justificationcharge is warranted, a court must view the record in the light most favorable to the defendant (see People v Petty, 7 NY3d 277,284 [2006]; People v Singh, 139AD3d 761, 762 [2016]). Contrary to the conclusion reached by our dissenting colleague andthe County Court, we find that there was a reasonable view of the evidence to support thedefendant's request for a justification charge pursuant to Penal Law § 35.15 (2)(b).
In February of 2014, prior to trial, codefendant Armando Martinez-Mendoza, also known as"Balu," who fired the shots that killed Amigon and wounded the other victims, pleaded guilty tomurder in the second degree and two counts of assault in the first degree, and waived his right toappeal. He signed an agreement requiring him to testify against the defendant at the defendant'strial. The agreement provided that he must testify truthfully.
When viewed in the light most favorable to the defendant, the testimony presented at trialreveals the following. On March 31, 2013, the defendant was at a bar in Newburgh, along withMartinez-Mendoza, when they became involved in a fight with others in the bar. The defendantwas stabbed in the abdomen. The defendant was then airlifted to Westchester Medical Center,where he was hospitalized for approximately 10 days. It was the defendant's understanding thatthe "word on the street" after that attack upon him was that the attackers never "finished thejob."
Approximately six weeks later, on the evening of June 15, 2013, the defendant, together witha group of companions comprising two men and two women, went to the El Molino restaurantand bar in Poughkeepsie. At trial, the defendant testified that while at El Molino, he went to thebathroom, where he saw an individual called Casper snorting cocaine. Another person, MelvinHernandez, was also there. When Casper asked the defendant if he wanted to buy drugs, thedefendant declined. Casper and Melvin Hernandez started to question the defendant about tattooson the defendant's arm. Without warning, Casper punched the defendant in the face, and he fell tothe ground. A third person, Roman Berra, then entered the bathroom, and the three men startedkicking the defendant while commenting on his tattoos, calling him "pussy" and "mother fucker,"and saying "East Side" repeatedly. The defendant was afraid that he would be stabbed again andthought that his stomach wound from the prior attack had been opened. The defendant testifiedthat the bar "bouncer," Jermaine Knox, who was also in the bathroom, did nothing to stop theattack, merely blocked the door, and "just stood there." Knox testified that when he went to thebathroom, he saw the altercation between the defendant and his attackers. The defendant claimedthat Casper and his companions left the bathroom laughing, and told the defendant that theywould kill him if he ever came back.
According to the defendant, after he was assaulted, he spoke to his male companions,Jonathan Ramirez and Martinez-Mendoza, who was drunk. The defendant had a purple eye andhad a sharp pain in the location of his prior stab wound. When one of his female companionsasked him if he was okay, the defendant answered that he had to leave because he was gettingdizzy. All of them then decided to leave El Molino, and the defendant told one of his femalecompanions to go open the car because he wanted to leave "real quick" so that he could getmedical attention. As they were leaving El Molino, Martinez-Mendoza asked the defendant whohad attacked him, and the [*3]defendant pointed to Casper. Thedefendant testified that he and his companions "just wanted to get out of there," and they left ontheir own. The defendant testified that many people who were in the bar, approximately 10 to 15of them, followed them outside while threatening them. They told the defendant and his friendsnot to come back and also threatened to kill the defendant, Ramirez, and Martinez-Mendoza.Outside El Molino, the defendant saw the people who had attacked him earlier in the bathroom,together with 10 to 15 other people. The defendant claimed that they seemed to be "bragging"about what they had done to him. According to Martinez-Mendoza, someone in the crowd said"you're gonna pay for it" in Spanish. Knox testified that Casper may have continued to beaggressive toward the defendant and his companions after the defendant's group exited the club.The defendant, along with his two female companions, then started walking toward the car whileRamirez and Martinez-Mendoza stayed behind, trying to keep the people outside the bar awayfrom them. The people were calling the defendant "pussy" and kept repeating "East Side, EastSide." They were also making threats. Martinez-Mendoza told the defendant to go to the car toget a gun from Ramirez's backpack, because there was going to be trouble. Indeed, thedefendant's female companions, Tania Raya and Milagros Huerta, each testified that whileleaving the club, they were both fearful of being injured. On his way to the car, the defendantturned around and saw Ramirez break a beer bottle in an attempt to keep some people away. Thedefendant quickly walked to the car, where he grabbed the gun from the backpack in the car. Heintended for Martinez-Mendoza to use it to scare the people away, and did not believeMartinez-Mendoza would fire the gun. The defendant believed he could not leave without hisfriends. The defendant testified that the men outside the bar were making threats and that if hedid not have "a weapon they would probably hurt us." He thought that his life and the lives of hisfriends were in danger. Although there was also a knife in the backpack, he did not take itbecause he did not think that it would be sufficient to keep the people away. When the defendantreturned with the gun to his friends, he observed one of the men who had attacked him in thebathroom reaching into the waist of his pants to obtain what the defendant believed to be aweapon, something he described as being shiny. Amigon, the victim, said something to Casperand grabbed Ramirez's arm, at which time Martinez-Mendoza grabbed the gun from thedefendant's hand. Martinez-Mendoza shot in Casper's direction, but Amigon was in front ofCasper, in the line of fire, and was shot.
Testifying on behalf of the People as required by his plea agreement, Martinez-Mendozamaintained that when they were outside El Molino, the defendant handed him the gun and thenpointed out the man who had hurt him. He testified that he fired the gun because he was angryabout "what they did" to the defendant and because he was drunk, but admitted, on directexamination, that at the time of his arrest, he told the investigating police officers that he shot thevictim and the others because he felt threatened and was afraid. At trial, he testified that what hetold the police had been a lie. Martinez-Mendoza also testified that at the time of his arrest, hehad told the police that there was a crowd of people coming after them out of the bar, as many as20; at trial, he testified that this also was a lie. On cross-examination, Martinez-Mendoza testifiedthat when he spoke to his mother from the police department following his arrest, he told her thesame story about the threatening crowd that he told the police. Upon cross-examination, hetestified that he lied over and over again to the police about the night of the shooting, butcontended that he was being truthful at trial. Martinez-Mendoza did, however, admit duringcross-examination that the reason he had the gun and was aiming it at the people outside of ElMolino was to protect his friends and to keep the people away from them, that he was fearful forthe safety of himself and his friends while they were leaving the club, and that he wanted toprotect them.
At the outset, we note that whether the defendant intended for Martinez-Mendoza to use thegun he provided or knew that he would use the gun does not preclude a defense of justification(see People v Magliato, 68 NY2d 24, 28-29 [1986]; People v Giamanco, 188AD2d 547, 547 [1992]).
Our dissenting colleague's conclusion that there was no reasonable view of the evidence thatwould have permitted the jury to find that the defendant acted with justification seems todiminish the import of the well-settled principle that, in determining whether the evidencewarrants a justification charge, the court must assess the record in the light most favorable to thedefendant (see People v Petty, 7 NY3d at 284; People v Magliato, 68 NY2d at 29;People v McManus, 67 NY2d at 549; People v Padgett, 60 NY2d at 144;People v Watts, 57 NY2d 299, 301 [1982]; People v Irving, 130 AD3d 844, 845 [2015]). We agree that here,some evidence contradicted the [*4]defendant's testimony.However, the record also included evidence, including testimony from Martinez-Mendoza, that,when viewed in the light most favorable to the defendant and drawing all reasonable permissibleinferences in his favor, indicated the propriety of charging the justification defense requested bythe defendant. Indeed, a justification defense was found to be appropriate in cases where part of adefendant's testimony was inconsistent with a justification defense (see People v Padgett,60 NY2d at 144-145), where a defendant's testimony was in conflict with that of other witnesses(see People v Huntley, 87 AD2d 488 [1982], affd 59 NY2d 868 [1983]; People v Locicero, 87 AD3d 1163,1164 [2011]), and even where there was "strong" evidence to negate a defendant's testimonyrelating to justification (People vCurry, 85 AD3d 1209, 1212 [2011]).
Furthermore, we disagree with the conclusion drawn by our dissenting colleague that thedefendant could not have reasonably believed that there was no ability to safely retreat, asdemonstrated by the fact that the defendant, along with his female companions, were able to getto the car without incident a few minutes earlier. The use of lethal defensive force is limited tocircumstances when the defender cannot "with complete personal safety, to oneself and others,""avoid the necessity of so doing by retreating" (Penal Law § 35.15 [2] [a]; see People v Aiken, 4 NY3d 324[2005]). However, the duty to retreat does not arise until the defendant forms a reasonable beliefthat another person "is using or about to use deadly physical force" (Penal Law§ 35.15 [2] [a]). More specifically, the other person's deadly force must be actuallyoccurring or imminent before the duty to retreat arises (see Matter of Y.K., 87 NY2d 430,434 [1996]). Here, the evidence, when viewed in the light most favorable to the defendant anddrawing all reasonable inferences in his favor, might lead a jury to decide that it was not until thepoint in time that the defendant returned to his companions with the gun that the threat of deadlyphysical force was imminent. Thus, the justification defense remained available to this defendant,even though it may have been more prudent for his own safety for him to leave the area of ElMolino when he first went to the car to retrieve the gun (see People v Magliato, 68 NY2dat 30; People v McManus, 67 NY2d at 549).
Because there was a reasonable view of the evidence to support a justification charge, thecharge should have been given (see People v Petty, 7 NY3d at 284; People vMcManus, 67 NY2d at 549; Peoplev Fermin, 36 AD3d 934, 935 [2007]). Further, the error was not harmless since it cannotbe said that there was no significant probability that the verdict would have been different if thecharge had been given (see People v Irving, 130 AD3d at 845).
Here, the evidence shows that the defendant, indicted on charges of murder in the seconddegree and assault in the first degree on an acting-in-concert theory, was entitled to assert ajustification defense notwithstanding that his codefendant who shot the victims pleaded guilty tothose offenses. The right to present a defense is "a fundamental element of due process of law"(Washington v Texas, 388 US 14, 19 [1967]), and one of the "minimum essentials of afair trial" (Chambers v Mississippi, 410 US 284, 294 [1973]). As an initial matter, to findthat Martinez-Mendoza's plea of guilty precludes the defendant from establishing his entitlementto a justification charge, regardless of whether an examination of the record as a whole wouldsupport such a charge, would impermissibly infringe upon the defendant's right to due process.Second, under the evidence viewed in the light most favorable to the defendant, there is areasonable view of the evidence that, notwithstanding the plea of guilty, Martinez-Mendoza's useof deadly and ordinary physical force was justified to protect himself and his friends. In this case,we find it would not be unreasonable for the jury to reject Martinez-Mendoza's trial testimony asunworthy of belief, as the jury was aware that testifying against the defendant was a condition ofMartinez-Mendoza's plea agreement. Viewing the record as a whole, upon such a determination,it also would not be unreasonable for the jury to conclude that Martinez-Mendoza fired the gunbecause he was faced with a threatening crowd and feared that deadly physical force was going tobe used against himself and his friends. Since the defendant was charged with the shared intent ofMartinez-Mendoza, he too was entitled to the defense of justification (see People vFermin, 36 AD3d at 934; People v Gant, 282 AD2d 298, 299-300 [2001]).
We note, however, that the failure to instruct the jury on the justification defense does notaffect the conviction of criminal possession of a weapon (see People v Pons, 68 NY2d264 [1986]; People v Tasheem, 298 AD2d 411, 412 [2002]).
[*5] Accordingly, we modify the judgment by vacating theconvictions of manslaughter in the first degree, assault in the first degree, and assault in thesecond degree, and the sentences imposed thereon, and by dismissing the count in the indictmentcharging murder in the second degree. As the defendant was convicted of manslaughter in thefirst degree, charged as a lesser-included offense of murder in the second degree, we dismiss thecount of the indictment charging murder in the second degree with leave to the People tore-present any appropriate charges to another grand jury (see People v Gonzalez, 61NY2d 633 [1983]; People v Beslanovics, 57 NY2d 726 [1982]; People v Andujar, 105 AD3d 756[2013]; People v Kim, 83 AD3d866 [2011]; People v Lauderdale, 295 AD2d 539 [2002]).
In light of our determination, we need not reach the defendant's remaining contentions.Leventhal, J.P., Cohen and Duffy, JJ., concur.
LaSalle, J., concurs in part and dissents in part, and votes to affirm the judgment, with thefollowing memorandum: I agree with my colleagues in the majority that the evidence was legallysufficient to prove the defendant's guilt of the charges of manslaughter in the first degree, assaultin the first degree, assault in the second degree, and criminal possession of a weapon in thesecond degree. I also agree with my colleagues in the majority that the County Court properlydenied the defendant's request to charge manslaughter in the second degree as a lesser-includedoffense of murder in the second degree. However, I respectfully dissent, and vote to affirm thejudgment, because I conclude that the court properly denied the defendant's request for ajustification charge. In my opinion, viewing the evidence in the light most favorable to thedefendant, there was no reasonable view of the evidence which would have permitted the jury tofind that the defendant's conduct was justified. Accordingly, I vote to affirm the judgment ofconviction.
I. The People's Case
In the evening of June 15, 2013, the defendant and four of his friends went to El Molino, arestaurant and bar in Poughkeepsie. The four friends were the codefendant ArmandoMartinez-Mendoza, Jonathon Ramirez, Milagros Huerta, and Tania Raya. Raya drove all of themin her car, and the men brought two backpacks with them.
While the defendant and his friends were in the bar, Jermaine Knox, who was workingsecurity, went into the bathroom and saw the defendant in an altercation with an individual calledCasper. Upon exiting the bathroom, the defendant, who appeared to be upset and in pain, spoketo Martinez-Mendoza and Ramirez, both of whom appeared angry.
When the defendant and his friends were leaving El Molino, another bouncer heardMartinez-Mendoza say "Fuck El Molino" and "we're going to get you all." Raya heard thedefendant say to either Martinez-Mendoza or Ramirez, "I'll show you who it is." The defendanttold Raya to go open the car, and Huerta went with her. Raya, Huerta, the bouncer, and RomanBerra, the owner of El Molino, all testified that while the defendant and his friends were exitingthe bar, no one was threatening them.
While outside El Molino, Ramirez was observed waving a beer bottle at individuals.Meanwhile, Raya, Huerta, and the defendant arrived at the car. The defendant opened the backdoor, reached into the back seat for something, and then returned to the front of El Molino whereMartinez-Mendoza and Ramirez had remained. There were approximately five or six otherindividuals outside. Huerta overheard Martinez-Mendoza and Ramirez ask the defendant "whodid it." The defendant then whispered something in Martinez-Mendoza's ear and handed him agun. Martinez-Mendoza began to fire the gun in the direction of the people who had gatheredoutside, and struck an individual who then ran inside the bar. Martinez-Mendoza then wentinside the bar and continued firing the gun, striking two more individuals.
[*6] Raya drove her vehicle to the front of El Molino, and thedefendant, Martinez-Mendoza, and Ramirez got inside. She testified that she did not hear anyonemaking threats while she was driving to the front of El Molino. Shortly after leaving El Molino,Raya's vehicle was pulled over by a police officer. The police officer observed a silver-coloredhandgun between the center console and the front passenger seat, and also observed one of thebackpacks, which contained a kitchen knife.
Martinez-Mendoza, who signed an agreement requiring him to testify truthfully at thedefendant's trial, was called as a People's witness. He testified that while at the bar, he went intothe bathroom to find the defendant getting up from the floor with a swollen face.Martinez-Mendoza later learned that the defendant had been in a dispute with someone over theprice of drugs. Martinez-Mendoza was angry and asked the defendant who had hit him. As theyreturned to the bar, the defendant told Martinez-Mendoza that he would show him who hadattacked him. The two of them, together with Ramirez, Raya, and Huerta, then proceeded toleave, and as they were leaving, Ramirez told the defendant to go get the gun. The defendant hadpreviously bought the gun, but Martinez-Mendoza denied that the defendant ever gave it to himbefore the shooting. No one was yelling at or threatening them, throwing things at them, orrushing toward them as they were leaving.
Martinez-Mendoza testified that he started yelling and screaming to get people to comeoutside. When four or five people came outside, he asked them who hit the defendant, because hewanted to "go after the guy." At the time, Ramirez was waving a broken beer bottle. Thedefendant came and stood behind him, handed him a gun, and then pointed to a man and said"that's him." Martinez-Mendoza testified that before the defendant handed him the gun, no onewas threatening them or trying to come after them. Martinez-Mendoza fired in the direction thedefendant had indicated, and hit a man who was not armed and was standing approximately fouror five feet away from him. He then walked toward the bar and continued shooting, hitting twoother people. Martinez-Mendoza testified that he fired the gun because he was drunk and angrythat the defendant had been assaulted. When they got in the car, he gave the gun to the defendant.Shortly after that, the police pulled them over. Martinez-Mendoza admitted that he initially liedto police when he said that he shot the victims because he felt threatened andafraid.
II. The Defendant's Case
The defendant testified that on March 31, 2013, less than three months prior to the incidentthat occurred at El Molino, he was the victim of a stabbing that occurred outside a club inNewburgh. As a result of that stabbing, the defendant purchased a gun from a man in Newburgh.Although the defendant later gave the gun to Martinez-Mendoza, the gun was kept in thedefendant's house because Martinez-Mendoza did not want his parents to find it.
On June 15, 2013, when the defendant and his friends were going to El Molino,Martinez-Mendoza and Ramirez both brought backpacks, but he did not know which backpackthe gun was in. While at the bar, the defendant went into the bathroom and saw Casper snortingcocaine. Casper asked the defendant if he wanted to buy drugs, and the defendant declined.Casper then punched him in the face, and other individuals began kicking him.
After the defendant was assaulted, he spoke to Ramirez and Martinez-Mendoza, who wasdrunk. The defendant was in pain and wanted to leave the bar to get medical attention. Thedefendant asked Raya to go open the car because he wanted to leave quickly. While they wereleaving the bar, Martinez-Mendoza asked the defendant who had attacked him, and the defendantpointed to Casper. The defendant testified that he and his friends just wanted to leave, and theyleft on their own.
As they were leaving, approximately 15 people followed and threatened them. They told thedefendant and his friends not to come back, and threatened to kill Ramirez andMartinez-Mendoza. Martinez-Mendoza told the defendant to get the gun from Ramirez'sbackpack. The defendant saw Ramirez break a beer bottle in what he believed was an attempt tokeep people away. The defendant testified that he, Huerta, and Raya walked toward the car, andRamirez and Martinez-[*7]Mendoza stayed behind, trying to keepthe people outside the bar, who were continuing to make threats, away from them. The defendanttestified that he walked quickly to the car and retrieved the gun. He believed that his life and hisfriends' lives were in danger. Although there was also a knife in the backpack, the defendant didnot take it, because he believed it would not be sufficient to keep the people away. The defendanttestified that he did not know whether the gun was loaded, and he did not believe thatMartinez-Mendoza would shoot anyone; rather, he thought that he would only use the gun toscare people away.
The defendant testified that the people outside El Molino had lots of bottles and probably hadknives. He further testified that he saw a "shiny thing," but was unsure whether it was a knife. Healso testified that he saw a man reach for something at his waist, although he admitted that henever told anyone that before the trial. The defendant testified that he believed that if he had notretrieved the gun, he and his friends would have been shot and killed.
When the defendant returned to his friends with the gun, Martinez-Mendoza began shootingin Casper's direction, but struck another individual. Shortly thereafter, the defendant andMartinez-Mendoza ran to the car, but then Martinez-Mendoza went back and continuedshooting.
III. Cross-Examination of the Defendant
On cross-examination, the defendant conceded various points. The defendant admitted thatwhile he was in the bar, he pointed out to Martinez-Mendoza and Ramirez the individual whohad assaulted him, and that he did not call the police after he was assaulted. He also admitted thatwhen he and his friends were leaving El Molino, no one prevented them from leaving.
He conceded, upon being shown a videotape recording of the parking area outside El Molino,that when he went to the car to get the gun, and after he retrieved it, he was not running. Rather,the defendant described it as "speed walking." He also admitted that there were no individualsblocking the way to the vehicle. Notwithstanding this, he never told Martinez-Mendoza orRamirez to get in the car so they could leave. While at the car, he didn't call the police from hiscell phone. He also did not tell the girls to call the police. He admitted that at this point he wassafe and he could have left in the car.
The defendant reiterated during cross-examination that even though there was also a knife inthe car, he took the gun because he did not believe the knife would be as effective at scaring thepeople away. However, he admitted that once he retrieved the gun, he never held the gun up ordisplayed it in any way, and he never yelled at the crowd to back off. Rather, he gave the gun toMartinez-Mendoza even though he knew he was drunk and angry; he also claimed,inconsistently, that Martinez-Mendoza grabbed the gun from him. He admitted that the gunwould have been safer in his hands. He admitted that, even though there were other individualsstanding outside threatening them, Martinez-Mendoza fired the gun in Casper's direction, and hitanother individual who was standing in front of Casper. The defendant also admitted that he didnot tell the police, when they pulled over Raya's car, that there was a gun in the car or that he sawan individual reach into his waistband while outside the bar.
IV.Justification
At trial, the defendant requested a justification charge. The County Court denied thedefendant's request, finding that there was no reasonable view of the evidence that supported ajustification defense. On appeal, the defendant argues that the court erred in denying his requestfor a justification charge. I disagree with my colleagues in the majority, and would hold that therewas no reasonable view of the evidence which would have permitted the jury to find that thedefendant's conduct was justified.
Penal Law § 35.15 provides, in pertinent part: "A person may not use deadlyphysical force upon another person . . . unless: (a) The actor reasonably believes thatsuch other person is using or about to use deadly physical force. Even in such case, however, theactor may not use [*8]deadly physical force if he or she knowsthat with complete personal safety, to oneself and others he or she may avoid the necessity of sodoing by retreating" (Penal Law § 35.15 [2] [a]). A person is justified in usingdeadly physical force against another if he or she reasonably believes such to be necessary todefend himself or herself or a third person from what he or she reasonably believes to be the useor imminent use of deadly physical force by such other person (see People v Heron, 130 AD3d754, 755 [2015]; People v Ojar,38 AD3d 684 [2007]).
"[J]ustification is comprised of both subjective and objective elements. The subjectiveelement is concerned with whether the defendant believed that the use of deadly force wasnecessary; while under the objective prong, the jury must consider whether a reasonable personin the defendant's circumstances would have believed that deadly force was required" (People v Umali, 10 NY3d 417,425 [2008]). When a defense of justification is raised, "the People must demonstrate beyond areasonable doubt that the defendant did not believe deadly force was necessary or that areasonable person in the same situation would not have perceived that deadly force wasnecessary" (id. at 425).
A charge on the defense of justification is required when requested if, viewing the evidencein the light most favorable to the defendant, there is a reasonable view of the evidence permittingthe jury to find that the defendant's conduct was justified (see People v Irving, 130 AD3d 844 [2015]; People v Heron,130 AD3d at 755; People v Nunez,120 AD3d 714 [2014]; People vRamirez, 118 AD3d 1108, 1112 [2014]; People v Zayas, 88 AD3d 918, 920 [2011]; People v Fermin, 36 AD3d 934,935 [2007]). To be entitled to a justification charge relating to the use of deadly physical force,the record must include evidence that the defendant reasonably believed the victim was using orwas about to use deadly physical force and that he or she could not safely retreat (see People vRamirez, 118 AD3d at 1112; People v Fermin, 36 AD3d at 935).
The NY Criminal Jury Instructions provide that the determination of whether a personreasonably believes deadly physical force to be necessary to defend himself/herself or someoneelse from what he or she reasonably believes to be the use or imminent use of deadly physicalforce by another individual, requires the application of a two-part test (see CJI2d[NY]Penal Law § 35.15 [2]). "First, the defendant must have actually believed that [theindividual] was using or was about to use deadly physical force against him/her [or someoneelse], and that the defendant's own use of deadly physical force was necessary to defendhimself/herself [or someone else] from it; and Second, a 'reasonable person' in the defendant'sposition knowing what the defendant knew and being in the same circumstances, would have hadthose same beliefs" (id.).
"Thus, under our law of justification, it is not sufficient that the defendant honestly believedin his [or her] own mind that he [or she] was faced with defending himself/herself [or someoneelse] against the use or imminent use of deadly physical force. An honest belief, no matter howgenuine or sincere, may yet be unreasonable" (id.).
A "defendant would not be justified if he/she knew that he/she could with complete safety tohimself/herself and others avoid the necessity of using deadly physical force by retreating"(CJI2d[NY] Penal Law § 35.15 [2]).
V. Analysis
Notably, much of the defendant's testimony that he believed that the people outside ElMolino were armed and that he feared for his and his friends' lives was contradicted by thetestimony of all of the People's witnesses. Viewing the evidence in the light most favorable to thedefendant, in my view, there was no reasonable view of the evidence that would have permittedthe jury to find that the defendant's conduct was justified.
The defendant testified that after he was attacked, he was in pain and just wanted to leavequickly and seek medical attention. He further testified that he and his friends were able to leavethe bar and go outside without incident. However, he testified that as he and his friends wereleaving, approximately 15 people followed them, told the defendant and his friends not to comeback, and threatened to kill Ramirez and Martinez-Mendoza. However, it is undisputed that noneof these individuals stopped or interfered with the defendant or any of his friends from leavingthe [*9]bar.
The defendant testified that these people had bottles with them; however, there was noevidence that they broke the bottles or were attempting to use them as weapons. Indeed, the onlyindividual who broke a bottle in an attempt to utilize it as a weapon was the defendant's friendRamirez. Although the defendant stated that the people "probably had knives," and that he saw a"shiny thing," he did not testify that he saw any of the individuals actually possess or display aknife or any other weapon. The testimony that he saw one of the individuals reach for somethingat his waist was revealed by the defendant for the first time at trial, and nonetheless was notevidence that the individual was reaching for a weapon.
The defendant conceded that none of these individuals attempted to stop him and his friendsfrom leaving, and none of them was impeding their ability to get to the car. Indeed, Raya, Huerta,and the defendant were able, with complete safety, to get back to the car without anyoneimpeding or harming them in any way, and there was no evidence that Martinez-Mendoza andRamirez were prevented from getting to the car.
Once the car was unlocked, rather than leaving or attempting to get Martinez-Mendoza andRamirez into the car, the defendant retrieved the gun, and returned to the area whereMartinez-Mendoza and Ramirez had remained, essentially leaving the safety of the vehicle andreturning to the area where he believed deadly physical force was imminent.
In my view, the defendant's testimony did not establish that, at the time he retrieved the gun,the defendant reasonably believed that any of the people outside El Molino was using or about touse deadly physical force on himself or his friends, and that he and his friends could not safelyretreat.
The defendant conceded that once he and his friends were outside, he never told his friendsthat they should leave. None of the individuals was physically blocking their path to the car. Yet,when Martinez-Mendoza told him to get the gun, he did not tell his friends that they should leaveor that he wanted to leave. The defendant could not have reasonably believed that any of theindividuals was about to use deadly physical force, because he did not see any of them possessingany weapons, other than bottles. However, even assuming that the defendant could havereasonably believed that the use of deadly physical force was imminent, he could not havereasonably believed that there was no ability to safely retreat. This was demonstrated by the factthat the defendant, Huerta, and Raya were indeed able to get to the car without incident, and thedefendant conceded that he was safe at that point and could have left.
The defendant conceded that the individuals outside El Molino did not stop them from goingto the car, and there was no testimony by the defendant that these individuals did anything toprevent Martinez-Mendoza or Ramirez from going to the car. There was no testimony that theindividuals, aside from making threats, did anything to prevent the defendant or any of hisfriends from leaving. Viewing the evidence in the light most favorable to the defendant, therewas no reason to believe that the defendant and his friends could not have retreated in completesafety. Rather than attempt to get Martinez-Mendoza or Ramirez to leave, the defendant went tothe car, retrieved the gun, and walked back to the very location where he claimed he and hisfriend were being threatened.
I agree with the general proposition stated by the majority that where a principal is entitled toa justification charge, a codefendant charged with acting-in-concert with the principal is alsoentitled to a justification charge (seePeople v Fermin, 36 AD3d 933 [2007]; People v Gant, 282 AD2d 298 [2001]).Here, however, Martinez-Mendoza admitted at trial that he lied initially when he told the policeand his mother that he shot the gun because he felt threatened and afraid, and actually shot thevictim and others because he was drunk and angry. Additionally, Martinez-Mendoza's guilt ofintentional murder was established by his plea of guilty.
In my view, a reasonable person in the defendant's position, knowing what the [*10]defendant knew and in the same circumstances, would not havebelieved that the use of deadly physical force was imminent or that he and his friends could nothave retreated with complete safety. In my view, there is no reasonable view of the evidencewhich would have permitted the jury to find that this conduct by the defendant was justified(see People v Watts, 57 NY2d 299 [1982]; People v Heron, 130 AD3d 754 [2015]; People v Casseus, 120 AD3d 828[2014]; People v Small, 80 AD3d786 [2011]; People vDickerson, 67 AD3d 700 [2009]; People v Simon, 56 AD3d 804 [2008]; People v Ojar, 38 AD3d 684[2007]; People v Snell, 256 AD2d 480 [1998]).
Accordingly, because I conclude that the County Court properly denied the defendant'srequest for a justification charge, I vote to affirm the judgment of conviction.