| People v Kerley |
| 2017 NY Slip Op 07345 [154 AD3d 1074] |
| October 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JonathanN. Kerley, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Saratoga County (MurphyIII, J.), rendered July 1, 2016, upon a verdict convicting defendant of the crimes of assault in thesecond degree and criminal possession of a weapon in the third degree.
On the night in question, defendant was at a bar in Saratoga County. After partially hearing acomment that the victim made to someone else, defendant approached the victim, pulled out aknife and slashed at him, cutting his hand. Following trial, a jury convicted defendant of assaultin the second degree and criminal possession of a weapon in the third degree. County Courtsentenced him to five years in prison and 1
County Court did not err in precluding defendant from calling two witnesses who were notpresent at the time of the incident. Defendant sought to call two men who were in the bar earlierin the evening to obtain testimony that would attack the bartender's credibility by contradictingher testimony regarding whether she was drinking and whether bar patrons were gettingboisterous. The court properly determined that the proposed testimony would be collateralbecause it had "no direct bearing on any issue in the case other than the credibility of" a witness(People v Blanchard, 279 AD2d 808, 811 [2001], lv denied 96 NY2d 826[2001]), and "[t]he general rule is that a party may not introduce extrinsic evidence on a collateralmatter solely to impeach credibility" (People v Alvino, 71 NY2d 233, 247 [1987]; see People v [*2]DeFreitas, 116 AD3d 1078, 1081 [2014], lv denied24 NY3d 960 [2014]). Thus, the court properly precluded the proffered testimony as irrelevant(see People v Brown, 107 AD3d1145, 1147-1148 [2013], lv denied 22 NY3d 1039 [2013]).
County Court properly declined defendant's request to charge the jury regarding thejustification defense. Although, when determining whether to give such a charge, the court mustview the evidence in the light most favorable to the defendant, a court should not submit thejustification defense to the jury "when no reasonable view of the evidence would support" thatdefense (People v Watts, 57 NY2d 299, 301 [1982]). Defendant swung a knife at thevictim, which constituted deadly physical force as a matter of law "because it was 'readilycapable' of causing death or serious injury, regardless of the degree of injury he actually intendedor inflicted" (People v Lugg, 124AD3d 679, 680 [2015], lv denied 25 NY3d 990 [2015]; see People v Harden, 134 AD3d1160, 1164 n 2 [2015], lv denied 27 NY3d 1133 [2016]; People v Jones, 24 AD3d 815, 816[2005], lv denied 6 NY3d 777 [2006]). A defendant may not use deadly physical force ifhe or she was the initial aggressor or if he or she could have safely retreated (see People v Peele, 73 AD3d 1219,1221 [2010], lv denied 15 NY3d 894 [2010]; People v Ryan, 55 AD3d 960, 963 [2008]). "As relevant here, for adefendant to be entitled to a justification charge with respect to the use of deadly physical force,the record must contain evidence that the defendant reasonably believed that the victim was usingor was about to use deadly physical force and that the defendant could not safely retreat" (People v Ramirez, 118 AD3d1108, 1112 [2014] [citations omitted]; see People v Sparks, 29 NY3d 932, 934-935 [2017]; People vRodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003]; seealso Penal Law § 35.15).
No reasonable view of the evidence here would support a justification defense. All of thePeople's eyewitnesses testified that defendant stood up and approached the victim, while thevictim stayed in place near the bar. Defendant alone testified that the victim began walkingtoward him, but that was only after defendant approached the victim while cursing and askinghim a confrontational question. Defendant was also the first, and only, person to pull a knife; headmitted that the victim had no weapon. Hence, defendant was the initial aggressor (see People v Watson, 20 NY3d1018, 1020 [2013]).
Although defendant had medical problems and testified that he was concerned that a simplepunch could seriously injure him, a punch from an ordinary person does not generally constitutedeadly physical force (see People v Bradley, 297 AD2d 640, 641 [2002], lvdenied 99 NY2d 556 [2002]), making it unreasonable to believe that the victim was about touse deadly physical force. Additionally, all of the witnesses who were present in thebar—including defendant—testified that defendant was seated a few feet from thedoor, with no one blocking his egress, but he walked in the opposite direction from the door toapproach and engage with the victim. Thus, defendant did not satisfy his duty to retreat (see People v Taylor, 23 AD3d 693,694 [2005], lv denied 6 NY3d 818 [2006]). Accordingly, defendant was not entitled tohave the jury charged with the justification defense (see People v Sparks, 29 NY3d at934-935; People v Bell, 108 AD3d795, 796 [2013], lv denied 22 NY3d 995 [2013]).
Defendant's arguments regarding the prosecutor's summation are unpreserved because hefailed to object at trial to the comments he now challenges (see People v Fiorino, 130 AD3d 1376, 1380 [2015], lvdenied 26 NY3d 1087 [2015]). To the extent that defendant alleges that counsel wasineffective for failing to object during summation, his argument is unavailing. Almost all of theprosecutor's statements constituted fair comment on the evidence or a reasonable response to thedefense summation, and any remarks that may have been improper "did not rise to the flagrantand pervasive level of misconduct which would deprive defendant of [*3]due process or a fair trial" (People v Heiserman, 127 AD3d 1422, 1424 [2015] [internalquotation marks and citation omitted]). Similarly, regarding counsel's failure to make a specificmotion to dismiss at the close of the People's case and again at the close of all the proof, counselcannot be faulted for failing to make motions that had little or no chance of success (see People v Bullock, 145 AD3d1104, 1107 [2016]).
Defendant further argues that he was deprived of the effective assistance of counsel becausecounsel was unprepared, and he damaged defendant's case by opening the door to his priorconvictions and suppressed statements. Despite defendant's assertions, counsel was prepared fortrial. Counsel asked for an adjournment before his cross-examination of the victim to providehim additional time to more thoroughly explore the discrepancies between the victim's medicalrecords and his testimony on direct examination. Nevertheless, counsel's arguments in support ofhis request indicated that he was already familiar with the medical records as well as the victim'sgrand jury testimony. When County Court denied the adjournment, counsel proceeded tovigorously cross-examine the victim. Indeed, defendant does not point to any specificdeficiencies in that cross-examination. The request for additional time was an attempt to bethorough and did not indicate a lack of preparedness.
Counsel did not open the door to defendant's prior convictions. Although counsel askeddefendant about the date of his criminal history, counsel explained to County Court that hethought the Sandoval ruling only bound the People. Counsel was trying to establish thatdefendant's criminal history was 25 years old, and that he had been leading a law-abiding lifeever since. When the court stated that the People would then be able to inquire about the detailsof that criminal history, counsel withdrew his question. Thus, the door was not actually opened,and defendant suffered no prejudice because the People were not permitted to inquire further intohis criminal history.
Counsel did open the door to admission of defendant's statement to the police, which counselhad successfully moved to suppress. However, defendant has failed to show that counsel openedthe door inadvertently or without a legitimate strategy, so as to render his assistance ineffective.In the suppressed statement, defendant had told the police that he "threw [the knife] back at thebar." Before trial, counsel reasonably and successfully moved to suppress the statement based ona violation of Miranda rights. At trial, however, the People established through otherproof that defendant possessed the knife during the incident, and they asserted a theory thatdefendant expressed his consciousness of guilt by taking a circuitous route home and disposingof the knife during that ride. At that point, the suppressed statement was cumulative regardingdefendant's possession of the knife, and not independently harmful. To counteract the People'stheory that defendant may have thrown the knife out of his vehicle while driving home, so as toprevent the weapon from being located, counsel opened the door and let in the suppressedstatement, which indicated that defendant left the weapon at the scene of the incident. Thestatement could support a defense theory that the police did not properly investigate due to theirfailure to locate the weapon even though it was left at the scene. Because the record indicates thatcounsel opened the door purposefully as part of a legitimate defense strategy, and defendant'sother arguments did not establish that counsel was ineffective, defendant has failed to show thathe was deprived of meaningful representation (see People v Taylor, 300 AD2d 746, 748[2002], lv denied 2 NY3d 746 [2004]).
Lynch, Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Saratoga County for further proceedings pursuant to CPL460.50 (5).