| People v Taylor |
| 2017 NY Slip Op 03539 [150 AD3d 768] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jessemar Taylor, Appellant. |
Lynn W. L. Fahey, New York, NY (Melissa S. Horlick of counsel), for appellant, andappellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross,Claibourne Henry, and Avshalom Yotam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered May 14, 2012, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with murder in the second degree and related crimes inconnection with the fatal shooting of Tyquan Joyner in Brooklyn on July 26, 2010. After a jurytrial, the defendant was convicted of murder in the second degree.
The defendant contends that the Supreme Court erred in denying his request for a chargeregarding the justified use of deadly physical force to defend himself against the use of deadlyphysical force. Contrary to the People's contention, this contention was preserved for appellatereview (see generally CPL 470.05 [2]; see also People v Clark, 129 AD3d 1, 17 [2015], affd 28NY3d 556 [2016]; People v Floyd,34 AD3d 494, 494 [2006]). However, the court properly denied the defendant's request for acharge on the justification defense, since no reasonable view of the evidence supported such acharge. "A person is justified in using deadly force against another if he or she reasonablybelieves such to be necessary to defend himself or herself or a third person from what he or shereasonably believes to be the use or imminent use of deadly physical force by such other person"(People v Heron, 130 AD3d754, 755 [2015] [internal quotation marks omitted]; see Penal Law§ 35.15 [2]; People vSingh, 139 AD3d 761, 762 [2016]). In considering whether a justification charge iswarranted, a court must view the record in the light most favorable to the defendant and"determine whether any reasonable view of the evidence would permit the factfinder to concludethat the defendant's conduct was justified. If such evidence is in the record, the court mustprovide an instruction on the defense" (People v Petty, 7 NY3d 277, 284 [2006]; see People vMcManus, 67 NY2d 541, 549 [1986]; People v Singh, 139 AD3d at 762). Here, noreasonable view of the evidence would permit the factfinder to conclude that the defendant'sconduct was justified (see People v Watts, 57 NY2d 299, 302 [1982]; People v Cotsifas, 100 AD3d1015, 1015 [2012]; People vSmall, 80 AD3d 786, 787 [2011]; People v Peele, 73 AD3d 1219, 1221 [2010]; see also People vClark, 129 AD3d at 24-25; cf. People v Singh, 139 AD3d at 762-763).
[*2] The defendant's contention that he was deprived of theconstitutional rights to counsel and to confront the witnesses against him when the SupremeCourt precluded him from eliciting evidence of a second gun found in a car parked near the crimescene and improperly curtailed his cross-examination of a prosecution witness about the presenceof a second gun is unpreserved for appellate review, as he did not assert a constitutional right tointroduce the excluded evidence at trial (see CPL 470.05 [2]; People v Lane, 7 NY3d 888, 889[2006]; People v Ramsundar, 138AD3d 891, 892 [2016]; People vSimmons, 106 AD3d 1115, 1116 [2013]; People v Lopez, 82 AD3d 1264 [2011]). In any event, the courtprovidently exercised its discretion in making the rulings. Apart from its proximity to the crime,there was no indicia that the second gun was linked to the shooting. Accordingly, the proposedline of cross-examination was speculative, only marginally relevant, and posed a danger ofmisleading the jury (see People vPena, 113 AD3d 701, 702 [2014]; People v Francisco, 44 AD3d 870, 870 [2007]; People v McGlothin, 6 AD3d 462,463 [2004]).
The defendant's claim that the Supreme Court deprived him of his right to a fair trial and hisright to counsel by improperly limiting the scope of summation is unpreserved for appellatereview (see People v Desjardins,113 AD3d 787, 788 [2014]; Peoplev Nails, 95 AD3d 1237 [2012]). In any event, the court properly limited defensecounsel's summation remarks under the circumstances of this case (see People vDesjardins, 113 AD3d at 788; People v Nails, 95 AD3d at 1237).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, raised in his pro se supplemental brief, areunpreserved for appellate review and, in any event, without merit. Mastro, J.P., Sgroi, Malteseand Duffy, JJ., concur.