| People v Marchant |
| 2017 NY Slip Op 05918 [152 AD3d 1243] |
| July 27, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v JenniferMarchant, Appellant. |
Kathleen A. Kugler, Conflict Defender, Lockport (Edward P. Perlman of counsel), fordefendant-appellant.
Jennifer Marchant, defendant-appellant pro se.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), rendered March26, 2014. The judgment convicted defendant, upon a jury verdict, of manslaughter in the firstdegree.
It is hereby ordered that the judgment so appealed from is reversed on the facts, theindictment is dismissed, and the matter is remitted to Niagara County Court for proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]) based on an incident inwhich she stabbed her boyfriend (decedent) with a kitchen knife, causing his death. Defendant'scontention in her pro se supplemental brief that the evidence is legally insufficient to support herconviction is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]),and we decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). We agree with defendant's further contentionin both her main and pro se supplemental briefs, however, that the verdict is against the weight ofthe evidence insofar as the jury rejected her justification defense (see People v Morgan, 99 AD3d622, 622-623 [2012]), and we therefore reverse the judgment and dismiss the indictment(see CPL 470.20 [5]).
The evidence at trial established that defendant left her home in the morning and spentseveral hours at a friend's house on the date of the incident, and the two of them then went todefendant's apartment late in the afternoon. Upon arriving there, they observed decedent drinkingwith his friends. After participating in drinking games at the apartment, decedent, defendant, anddefendant's friend went to a bar where they continued drinking. Defendant and decedent returnedto defendant's apartment at about 10:15 p.m. Shortly thereafter, they became engaged in a loudargument, and decedent called 911, purportedly to report that defendant, who was on probation,was drinking. Upon answering the call, the 911 operator could hear a male voice and a femalevoice, and decedent eventually spoke to the operator but then hung up the phone. The operatorcalled back, and she and another 911 operator tried to speak to decedent and defendant, butdecedent was reluctant to allow them to speak to defendant. Decedent hung up on the operatorstwice more, and he warned the second operator that "there would be trouble" if she sent thepolice. That operator, nonetheless, sent the police to the apartment. When responding officersarrived at the apartment, they heard screaming and observed a male and a female struggling witheach other in a bathroom, and decedent "came out of the bathroom and lunged at" one of theofficers. Upon subduing decedent, the officers observed that he was bleeding heavily and therewas a knife on the bathroom floor. Decedent died from a single stab wound to the chest, and hehad a blood alcohol content of .285% at the time of his death.
[*2] Defendant told one of the responding officers that decedentwas "coming after [her]," that she "thought he was going to kill [her]," and that she "did notknow what else to do." Upon being interviewed at the police station, defendant stated thatdecedent had chased her around the apartment during their argument, resulting in items beingknocked over, that he had forced open the bedroom and bathroom doors, and that she hadretrieved the knife from the kitchen and told him to get away from her, but he would not listen.Defendant further stated that she had closed herself in the bathroom again, but decedent forcedopen the door, shut it behind him, dared her to stab him, and pulled her head backward by herhair. She stated that she had made one last effort to get out of the bathroom, but decedentgrabbed her by the hair again and she "just stuck him" with the knife. Defendant's account wascorroborated by police testimony that the bedroom and bathroom doors were damaged in theincident and pieces of their locks were found on the floor, by medical testimony that decedenthad bruising on his shoulder consistent with breaking down doors, and by blood evidence tendingto confirm that decedent was inside the bathroom in front of its door when he was stabbed.
"When a defense of justification is raised, 'the People must prove beyond a reasonable doubtthat [the] defendant's conduct was not justified' " (People v Umali, 10 NY3d 417, 425 [2008], rearg denied 11NY3d 744 [2008], cert denied 556 US 1110 [2009]; see Penal Law§§ 25.00 [1]; 35.00). In this case, the People were required to prove either thatdefendant lacked a subjective belief that her use of deadly physical force was necessary to protectherself against decedent's use or imminent use of deadly physical force, or that "a reasonableperson in the same situation would not have perceived that deadly force was necessary"(Umali, 10 NY3d at 425; see Penal Law § 35.15 [1], [2] [a]; People v Walker, 26 NY3d 170,175 [2015]). Although the jury found that the People met that burden, we conclude, upon ourindependent assessment of the proof (see People v Delamota, 18 NY3d 107, 116-117 [2011]; People v Danielson, 9 NY3d 342,348-349 [2007]), that the jury "failed to give the evidence the weight it should be accorded"(People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant's statements at the scene andin her police interview evinced a belief that deadly force was necessary to protect her fromdecedent, and we conclude that the People did not demonstrate beyond a reasonable doubt thather belief was objectively unreasonable. Instead, the credible evidence established that decedentwas in a drunken rage during a heated argument with defendant, that he had threatened "trouble"if the police came, that he had repeatedly forced open doors in the course of pursuing defendantthrough the apartment, that he was not deterred even when she armed herself with a knife, that hehad cornered her in the bathroom and pulled her hair, and that he had grabbed her by the hair toprevent her from leaving the bathroom just before she stabbed him. Under those circumstances,we conclude that the People failed to meet their burden of establishing that defendant lacked areasonable belief that decedent was about to use deadly physical force against her, even thoughdecedent was not armed (see Morgan, 99 AD3d at 622-623; People v Svitzer, 51AD2d 935, 935 [1976]; see also Matter of Y.K., 87 NY2d 430, 434 [1996]). In otherwords, this is not a case in which the force employed by defendant " 'exceeded that whichwas necessary to defend [herself]' " (People v Tubbs, 134 AD3d 1464, 1465 [2015], lv denied 27NY3d 1156 [2016]).
In light of our determination, there is no need to address defendant's remaining contentions inher main and pro se supplemental briefs.
All concur except DeJoseph and Scudder, JJ., who dissent and vote to affirm in the followingmemorandum.
DeJoseph and Scudder, JJ. (dissenting). We respectfully dissent because we disagree with themajority's conclusion that the verdict is contrary to the weight of the evidence. The crucial area of our disagreement is on the issue whether defendantreasonably believed that she was confronted by the use or imminent use of deadly physical force.It is well settled that "[a] defendant is justified in using deadly physical force when he or shereasonably believes, as pertinent here, 'that such force is necessary . . . to protectagainst the use or imminent use of deadly physical force' " (People v Every, 146 AD3d 1157,1161 [2017]). "[I]t was [undoubtedly] the People's burden to disprove [the justification defense]by demonstrat[ing] beyond a reasonable doubt that defendant did not believe deadly force wasnecessary or that a reasonable person in the same situation would not have perceived that deadlyforce was necessary" (id. [internal quotation marks omitted]). Here, as in Every, itis undisputed that "the victim was unarmed and that defendant was the first to escalate theconfrontation by using a deadly weapon," i.e., a knife (id. at 1162). "The use of a 'knife toinflict injury upon one's victim constitutes the use of deadly physical force' " (People v Haynes, 133 AD3d 1238,1239 [2015], lv denied 27 NY3d 998 [2016]). Thus, in our view, the jury could havereasonably concluded that " 'the predicate for the use of deadly force[, that [*3]is,] the reasonable belief that one is under deadly attack[, was]lacking' " (Every, 146 AD3d at 1162; see People v Goley, 113 AD3d 1083, 1083-1084 [2014]). While thetrial record supports the majority's observations that the victim was pulling defendant's hair,forcing himself into the bathroom and/or bedroom, and preventing her from leaving, we concludethat those actions do not amount to deadly physical force to justify defendant's actions (seeGoley, 113 AD3d at 1083-1084). Simply stated, in our view, defendant resorted to moreforce than was necessary (see People vMadore, 145 AD3d 1440, 1441 [2016], lv denied 29 NY3d 1034 [2017];People v Jones, 151 AD2d 997, 997 [1989], lv denied 74 NY2d 812 [1989]). Inview of the foregoing, we conclude that "the evidence at trial established that the victim[ ] [was]not using or attempting to use deadly physical force against defendant at the time" of thealtercation (Haynes, 133 AD3d at 1239), and the People therefore effectively "disprovedthe justification defense beyond a reasonable doubt" (People v Johnson, 103 AD3d 1226, 1227 [2013], lv denied21 NY3d 944 [2013]). Inasmuch as we conclude that the remaining contentions raised indefendant's main and pro se supplemental briefs do not require reversal or modification of thejudgment, we would affirm. Present—Whalen, P.J., Smith, DeJoseph, Troutman andScudder, JJ.