| People v Cruz |
| 2019 NY Slip Op 06326 [175 AD3d 1060] |
| August 22, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Dominick Cruz, Appellant. |
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara Sheldon, J.), rendered December2, 2016. The judgment convicted defendant, upon a jury verdict, of murder in the second degree,attempted murder in the second degree, assault in the first degree and criminal possession of aweapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), attempted murder in thesecond degree (§§ 110.00, 125.25 [1]), assault in the first degree(§ 120.10 [1]), and criminal possession of a weapon in the second degree(§ 265.03 [3]). The conviction stems from an incident in a parking lot near a barwhere defendant and two of his friends had a physical altercation with three other men. Thealtercation resulted in one man being fatally shot, and another being injured by a gunshot.Defendant admitted firing those shots, but argued during trial that he acted in self-defense.
We reject defendant's contention that the verdict is against the weight of the evidence withrespect to the justification defense (seePeople v Johnson, 103 AD3d 1226, 1226-1227 [4th Dept 2013], lv denied 21NY3d 944 [2013]). Defendant testified that during the altercation he observed a "glint" and heardone of his friends say that "there was a knife." The People established, however, that the twovictims were unarmed, and the jury could have reasonably determined that the other man wasunarmed based on the testimony of eyewitnesses, who did not observe any weapons during thefight. Thus, "the jury could reasonably have concluded that 'the predicate for the use of deadlyforce[, that is,] the reasonable belief that one is under deadly attack[, was] lacking' " (People v Every, 146 AD3d 1157,1162 [3d Dept 2017], affd 29 NY3d 1103 [2017]). Even assuming, arguendo, thatdefendant saw a knife, we conclude that the jury could have reasonably determined that thePeople proved 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" (People vUmali, 10 NY3d 417, 425 [2008], rearg denied 11 NY3d 744 [2008], certdenied 556 US 1110 [2009]). Based on defendant's own trial testimony, the three men hadrun away from him and towards a wooded area by the time defendant retrieved the gun. Even ifwe were to credit defendant's version of events that the three men descended upon him after heretrieved the gun, defendant admitted that he did not shoot the man with the knife. Furthermore,defendant acknowledged that he "had time to take off towards [his] car," but opted to retrieve hisgun and re-engage with the victims' group, rather than retreat from the fight, and therefore "thejury could reasonably have found that 'defendant could have safely retreated without killing [onevictim and injuring another]' " (People v Estrada, 1 AD3d 928, 928-929 [4th Dept 2003], lvdenied 1 NY3d 627 [2004]). Thus, we conclude that, although a different verdict would nothave been unreasonable, when viewing the evidence in light of the elements of the crimes ascharged to the 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 generally People vBleakley, 69 NY2d 490, 495 [1987]), and the jury did not fail to give the evidence the weightit should be accorded (see People vKaba, 166 AD3d 1566, 1567 [4th Dept 2018], lv denied 32 NY3d 1206[2019]).
Defendant failed to object to County Court's charge to the jury on the justification defenseand thus failed to preserve for our review his contention that the charge was insufficient becausethe jury was not instructed that they must assess the situation from defendant's point of view (see People v Heatley, 116 AD3d23, 25-26 [4th Dept 2014], appeal dismissed 25 NY3d 933 [2015]). In any event,defendant's contention is without merit inasmuch as the language used by the court mirrored thelanguage of the Criminal Jury Instructions and " 'the justification charge, viewed in itsentirety, was a correct statement of the law' " (People v Ford, 114 AD3d 1221, 1221 [4th Dept 2014], lvdenied 23 NY3d 962 [2014]; see CJI2d[NY] Defenses, Justification: Use of DeadlyPhysical Force in Defense of a Person). Contrary to defendant's related contention, the court didnot err in its instruction with respect to the count of criminal possession of a weapon in thesecond degree inasmuch as the court did not instruct the jury that the justification defense appliedto that count (see People v Tyler,147 AD3d 1441, 1442 [4th Dept 2017], lv denied 29 NY3d 1037 [2017]).
Contrary to defendant's contention, the court did not abuse its discretion when it precludeddefendant from recalling a prosecution witness (see People v Comerford, 70 AD3d 1305, 1306 [4th Dept 2010]; People v Wegman, 2 AD3d 1333,1335 [4th Dept 2003], lv denied 2 NY3d 747 [2004]). "Defendant previously had beenafforded a full and fair opportunity to cross-examine the witness concerning [that witness's]statements [to the police at the crime scene] but failed to avail himself of that opportunity"(Comerford, 70 AD3d at 1306). We reject defendant's further contention that the courtabused its discretion in precluding defendant from testifying that he "could just tell that" one ofthe victims was drunk and high inasmuch as defendant's opinion lacked a sufficient basis (cf. People v Casco, 77 AD3d 848,849 [2d Dept 2010], lv denied 16 NY3d 742 [2011]).
Defendant further contends that he was denied a fair trial by prosecutorial misconduct duringthe cross-examination of defendant and during summation. Most of the instances of allegedimpropriety are not preserved for our review (see CPL 470.05 [2]). In any event, in theinstances where defendant did object, the court issued curative instructions (see People v Hunt, 172 AD3d1888, 1889 [4th Dept 2019]; Peoplev Wallace, 59 AD3d 1069, 1071 [4th Dept 2009], lv denied 12 NY3d 861[2009]), and the prosecutor's cross-examination of defendant was not improper and theprosecutor's summation was "a fair response to defense counsel's summation or fair comment onthe evidence" (People v McEathron,86 AD3d 915, 916 [4th Dept 2011], lv denied 19 NY3d 975 [2012]; seeHunt, 172 AD3d at 1889; Wallace, 59 AD3d at 1071). Inasmuch as we conclude thatthere was no prosecutorial misconduct, we reject defendant's further contention that he wasdenied effective assistance of counsel based on defense counsel's failure to object to the allegedimproprieties (see People vTownsend, 171 AD3d 1479, 1481 [4th Dept 2019]). Viewing the evidence, the law andthe circumstances of this case in totality and as of the time of the representation, we concludethat defendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,DeJoseph, NeMoyer and Curran, JJ.