| People v Reese |
| 2018 NY Slip Op 07365 [166 AD3d 1057] |
| November 1, 2018 |
| Appellate Division, Third Department |
[*1](November 1, 2018)
| The People of the State of New York,Respondent, v David Reese, Appellant. |
Arthur G. Dunn, Troy, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Hannah E.C. Moore, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered August 13, 2015, upon a verdict convicting defendant of the crime ofmurder in the second degree.
On the morning of February 3, 2014, defendant, a stationary engineer employed bythe New York City Department of Environmental Protection (hereinafter DEP) in itsmaintenance shop in the City of Kingston, Ulster County, walked to the office of a DEPpolice officer with a pistol in his back pocket. After the officer relieved defendant of thepistol and asked him what was going on, defendant announced that he had shot acoworker. Defendant was arrested and the body of the coworker, Aron Thomas(hereinafter the victim), was found in another part of the building, lying on the floor in apool of blood. Defendant was subsequently charged by indictment with murder in thesecond degree and, following a jury trial—wherein defendant raised theaffirmative defenses of extreme emotional disturbance (hereinafter EED) and not guiltyby reason of mental disease or defect—he was convicted as charged. County Courtthereafter sentenced defendant to a prison term of 25 years to life. Defendant nowappeals, and we affirm.
Defendant contends that the jury's verdict was not supported by legally sufficientevidence because the proof elicited at trial failed to establish that he had the requisiteintent to cause the death of another person and, instead, the victim's death was the resultof an accident. Alternatively, defendant contends that the jury's rejection of theaffirmative defenses of EED and not guilty by reason of mental disease or defect wasagainst the weight of the evidence. In assessing a challenge to the legal sufficiency of theevidence, "this Court views the evidence in the light most favorable to the People toevaluate whether any valid line of reasoning and permissible inferences could satisfyevery element of the charged crime[ ] and lead rational people to the conclusion reachedby the jury" (People v Pratt,162 AD3d 1202, 1202 [2018], lv denied 32 NY3d 940 [2018]; see People v Robinson, 156AD3d 1123, 1124 [2017], lv denied 30 [*2]NY3d 1119 [2018]). In assessing the weight of theevidence, "[w]here, as here, a different verdict would not have been unreasonable, wemust . . . weigh conflicting testimony, review any rational inferences thatmay be drawn from the evidence and evaluate the strength of such conclusions" (People v Benson, 119 AD3d1145, 1146 [2014] [internal quotation marks and citation omitted], lv denied24 NY3d 1118 [2015]; seePeople v Williams, 130 AD3d 1323, 1324 [2015]; People v Chancey, 127 AD3d1409, 1410 [2015], lv denied 25 NY3d 1199 [2015]). As relevant here, aperson is guilty of murder in the second degree when, "[w]ith intent to cause the death ofanother person, he [or she] causes the death of such person" (Penal Law§ 125.25 [1]). To that end, it is well settled that "[t]he intent to kill may beinferred from the surrounding circumstances and a defendant's actions" (People v Croley, 163 AD3d1056, 1056 [2018] [internal quotation marks and citation omitted]; see People v Hamilton, 127AD3d 1243, 1245 [2015], lv denied 25 NY3d 1164 [2015]).
Defendant testified at trial, and he does not deny that he caused the death of thevictim; rather, he claims that the shooting was an accident that occurred during "astruggle for self-preservation" such that the People failed to establish the requisite intentto kill. According to defendant, he believed that the victim burglarized his home in 2011and had been surreptitiously surveilling him and his family since that time, and that herandomly chose the morning of the shooting to confront the victim about these events.He testified that, while walking into the maintenance office that morning, the victim hadcut defendant off, rolled his eyes at defendant, slammed a few doors in the maintenanceshop and then walked into their shared office space and slammed a clipboard on acabinet before walking back out into the maintenance shop. Defendant testified that,based on the victim's conduct, it "seemed like he wanted my attention for some reason."Defendant then walked over to where the victim was standing and asked, "why are youstalking me and my family," to which the victim replied, "wasn't me, wasn't me."Defendant then repeated the question, while pulling out a pistol from underneath hisjacket and holding it next to his right thigh. Defendant claims that an altercationsubsequently ensued when the victim attempted to grab the pistol from him and that, inthe resulting struggle, defendant punched the victim in the face with his left hand and, asdefendant did so, the pistol in his right hand simultaneously discharged. According todefendant, this shot did not strike the victim and, at that point, the victim was kneelingon the ground facing away from defendant. Defendant testified that he then put his handon the victim's shoulder and continued yelling at him stating, "why did you break into myhouse, why are you stalking me and my family, why are you f. . .ing withme and my family?" Defendant claims that the victim then lunged at him a second time inan attempt to get his pistol, causing defendant to fall backwards onto the floor and hispistol to accidentally discharge a second time, killing the victim.
The People, however, offered evidence of defendant's conduct both before and afterthe shooting that they claim clearly established defendant's intent to kill. The Peoplesubmitted proof that defendant and the victim were not friendly with one another andgenerally did not speak to each other based upon a long-simmering tension that haddeveloped as a result of, among other things, defendant's belief that the victim was racistand had previously burglarized his home and was stalking/surveilling him and his family.On the Friday before the shooting, defendant went to a sporting goods store andpurchased ammunition for his pistol. The following Monday morning, defendant arrivedat work with the loaded pistol and, less than 20 minutes later, confronted the victim atgunpoint. Contrary to defendant's version of events, photographs of the maintenanceshop where the alleged altercation and shooting took place provided no indication thatany struggle had occurred. Moreover, the medical examiner who performed an autopsyof the victim testified that the victim had suffered a blunt force injury to the head, notfrom a punch, but more consistent with having been hit with a gun. Gunshot residuetests, meanwhile, indicated that defendant was approximately two to three feet away fromthe victim when the fatal shot occurred and, based on the medical examiner's observationof the entrance wound, he opined that the victim was facing away from defendant whenhe was shot and killed. A forensic scientist and firearms examiner who examineddefendant's pistol found that it was in working order and its safety devices werefunctional, including the "drop safety," which prevents the pistol from accidentally goingoff when dropped. She further opined that the pistol would not have gone off [*3]by itself without pressure being applied to thetrigger.[FN*]Following the shooting, defendant called 911 to report it and then walked to the DEPofficer's office with his pistol; in each instance, defendant reported that he shot thevictim, but he did not claim it to be an accident. Viewing the evidence in a light mostfavorable to the People, we find that a valid line of reasoning and permissible inferencesexist from which the jury could conclude that defendant possessed the requisite intent toshoot and kill the victim (seePeople v Mathews, 134 AD3d 1248, 1249 [2015]).
We also find unavailing defendant's contention that the jury's rejection of theaffirmative defenses of EED and not guilty by reason of mental disease or defect wereagainst the weight of the evidence. "To establish an [EED] defense, a defendant mustshow by a preponderance of the evidence 'first, that he or she acted under the influenceof an [EED] and, second, that there was a reasonable explanation or excuse for thatdisturbance' " (People v Williams, 130 AD3d at 1324, quoting Peoplev Roche, 98 NY2d 70, 76 [2002]). With regard to the first element, defendant wasrequired to show that he "was subjectively under an [EED], which usually involves a lossof self-control" (People v Williams, 130 AD3d at 1324; see People v Cass, 18 NY3d553, 561 [2012]; People vPavone, 117 AD3d 1329, 1331-1332 [2014], affd 26 NY3d 629 [2015]).When presented with competing expert testimony with respect to a defendant's state ofmind at the time he or she committed the alleged criminal activity, it is within the jury'sprovince to credit the testimony of one expert over another and reject the affirmativedefenses of EED or not guilty by reason of mental disease or defect (see People v Hadfield, 119AD3d 1217, 1222 [2014], lv denied 25 NY3d 989 [2015]; People vBenson, 119 AD3d at 1148).
Defendant presented the testimony of a forensic psychiatrist who opined thatdefendant has been suffering from a delusional disorder since 2011 and, as a resultthereof, did "not fully understand the wrongfulness of what he was doing when hecommitted the instant offense." The People, however, provided counter testimony fromtheir own forensic psychiatrist who opined that "defendant did not lack substantialcapacity to know or appreciate the nature and consequences of his actions" and did notsuffer from an EED at the time that he shot the victim. Significantly, these competingexpert opinions were not the only proof offered at trial as to whether defendant sufferedfrom an EED when he shot the victim. Extensive additional proof was submittedregarding defendant's conduct both before and after the shooting that undermined hisclaimed EED and mental disease and defect defenses. As previously noted, defendantharbored animosity toward the victim, had purchased ammunition for his pistol theFriday before the shooting and, less than 20 minutes after he arrived at work thefollowing Monday morning, he used same to kill the victim. Further, despite the victim'sclaimed aggressive behavior that morning (i.e., slamming doors and clip boards),defendant testified that no words were exchanged between the two and that he remainedcalmly at his desk for some time before choosing to confront the victim. Defendanttestified that, when he did ultimately confront the victim, he did so in order to let thevictim know that, "if [the victim didn't] stop stalking [him] and [his] family, that [thevictim was] going [to] have consequences."
Following the shooting, defendant calmly called 911, reported the shooting andfollowed the dispatcher's instructions. He then knocked on the office door of the DEPpolice officer located within the same building and allowed the officer to remove hispistol from his back pocket. Defendant then proceeded to walk out of the buildingalongside the DEP officer, whereupon he coolly indicated to the officer that he had shotthe victim and then allowed himself to be taken into custody without incident. A City ofKingston police officer who subsequently interviewed defendant at the police stationtestified that, during the interview, defendant was calm, quiet and respectful andanswered the questions that were asked of him. Based on the foregoing proof, we findthat a rational jury could have reasonably determined that defendant's conduct, bothbefore and after the shooting, evidenced a calm and calculated deliberateness [*4]demonstrating that he had full command of his facultiesand exhibited a consciousness of guilt that was wholly inconsistent with an EED defense(see People v Williams, 130 AD3d at 1324-1325; People v Pavone, 117AD3d at 1335-1336). Accordingly, weighing the conflicting testimony and the strengthof conflicting inferences to be drawn from the evidence, and giving deference to thejury's factual and credibility determinations, we find that defendant failed to prove hisaffirmative defenses by a preponderance of the evidence and, therefore, we find noreason to disturb the jury's determinations in this regard (see People v Williams,130 AD3d at 1325-1326; People v Chancey, 127 AD3d at 1411; People vBenson, 119 AD3d at 1148; see also People v Bleakley, 69 NY2d 490, 495[1987]).
Next, defendant failed to preserve his contention that County Court committedreversible error by failing to sua sponte provide a justification defense in its charge to thejury as no request was made for such a charge, nor was any objection rendered followingCounty Court's final charge to the jury (see People v Marshall, 162 AD3d 1110, 1115 [2018], lvdenied 31 NY3d 1150 [2018]; People v Ramirez, 118 AD3d 1108, 1111 [2014]). In anyevent, a justification charge would have been totally incompatible with the primarydefenses that he offered at trial—i.e., that this was an intentional act committed bya person suffering from an EED or mental disease or defect or that this was an accidentalshooting (see People vHoward, 22 NY3d 388, 401 [2013]; People v DeGina, 72 NY2d 768,777 [1988]; see also People vClark, 129 AD3d 1, 4 [2015], affd 28 NY3d 556 [2016]). Likewise,defendant's trial counsel cannot now be found to be ineffective for failing to request sucha charge and interject yet another defense theory of the case that would only have servedto confuse the jury and undermine defendant's credibility (see People v McFadden, 161AD3d 1570, 1572 [2018], lv denied 31 NY2d 1150 [2018]; People v Nauheimer, 142AD3d 760, 761 [2016], lv denied 28 NY3d 1074 [2016]).
Lastly, although defendant had no prior criminal history, given the violent andsenseless nature of this crime and his lack of remorse for having unjustifiably shot andkilled his coworker—a 33-year-old husband and father with two youngchildren—we reject the claim that County Court's imposition of the maximumsentence constituted an abuse of discretion and find no extraordinary circumstances thatwould warrant our modification of defendant's sentence in the interest of justice (see People v Cayea, 163 AD3d1279, 1283 [2018]; Peoplev Criss, 151 AD3d 1275, 1281 [2017], lv denied 30 NY3d 979 [2017]).Defendant's remaining contentions, to the extent not specifically addressed, have beenreviewed and found to be without merit.
Garry, P.J., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Moreover, defendantacknowledged that he had received firearms training while in the Navy and hadsubsequently taken a firearms safety course prior to purchasing his pistol. As such, hewas familiar with how to safely handle a firearm, including the safety devices affiliatedtherewith.