| People v Kaba |
| 2018 NY Slip Op 07861 [166 AD3d 1566] |
| November 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Mohamed Kaba, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Julie Bender Fiske of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered July 18, 2016. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the second degree (Penal Law § 120.05 [2]). We rejectdefendant's contention that the evidence is legally insufficient to disprove hisjustification defense (see Peoplev Carter, 145 AD3d 1567, 1567 [4th Dept 2016]). The People established thatdefendant cut the victim with a box cutter during a fight between defendant, the victim,and their respective friends. Although defendant testified that he saw an unknownperson, whom he could not describe, holding a "huge blade" or "large knife" andswinging it around, no other witnesses saw anyone with a knife. In addition, defendanttestified that the victim did not have a knife and that defendant was not in fear of his lifewhen the victim was on the ground and defendant was slashing him. The Peopletherefore "demonstrate[d] beyond a reasonable doubt that the defendant did not believedeadly force was necessary or that a reasonable person in the same situation would nothave perceived that deadly force was necessary" (People v Umali, 10 NY3d 417, 425 [2008], reargdenied 11 NY3d 744 [2008], cert denied 556 US 1110 [2009]). We furtherconclude that, viewing the evidence in light of the elements of the crime as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), including the charge on the defense ofjustification, the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). " '[T]he jury was in the bestposition to assess the credibility of the witnesses and, on this record, it cannot be said thatthe jury failed to give the evidence the weight it should be accorded' " (People v Kalinowski, 118AD3d 1434, 1436 [4th Dept 2014], lv denied 23 NY3d 1064 [2014]).
We reject defendant's contention that his right to remain silent was violated and thatSupreme Court should have suppressed his statement to the police on that ground. Afterdefendant was arrested and given his Miranda warnings, he invoked his right toremain silent. Defendant was then booked and transported to an area to be held forarraignment. While the transporting officers and defendant were waiting in the lobby, apassing police officer said to the transporting officers, "so you guys got your stabbingsuspect?" Defendant responded, "it was not a stabbing, it was a slashing." We concludethat the remark by the officer was not the functional equivalent of interrogation inasmuchas it was not "reasonably likely to elicit a response" (People v Ferro, 63 NY2d316, 319 [1984], cert denied 472 US 1007 [1985]; see Rhode Island vInnis, 446 US 291, 301-302 [1980]; People v Roberts, 121 AD3d 1530, 1531 [4th Dept 2014],lv denied 24 NY3d 1122 [2015]). In any event, we conclude that any error inrefusing to suppress defendant's statement is harmless beyond a reasonable doubt (see People v Hough, 151AD3d 1591, 1593 [4th Dept 2017], lv denied 30 NY3d 950 [2017]; seegenerally People v Crimmins, 36 NY2d 230, 237 [1975]). In light of the videoevidence depicting the incident at issue, there is no question that defendant was theperpetrator of the assault.
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Lindley, DeJoseph, NeMoyer and Winslow, JJ.