| People v Anderson |
| 2020 NY Slip Op 01179 [180 AD3d 923] |
| February 19, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kathon Anderson, Appellant. |
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and SolomonNeubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dineen Ann Riviezzo, J.), rendered May 3, 2016, convicting him of murder in thesecond degree and attempted murder in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of murder in the second degree and attempted murderin the second degree related to a shooting on a B15 bus in Brooklyn. The defendant, whowas 14 years old at the time of the incident, was seated at the back of the bus when rivalgang members boarded the bus and moved toward the back. As the rival gang membersreached the middle of the bus, the defendant took out a gun and shot at them, hitting andkilling an innocent passenger. The defendant then ran off the bus after the fleeing gangmembers and continued shooting. The defendant appeals.
"[A] defendant is justified in using 'deadly physical force' upon another only if thatdefendant 'reasonably believes that such other person is using or about to use deadlyphysical force' " (Peoplev Brown, 33 NY3d 316, 320 [2019], quoting Penal Law § 35.15[2] [a]). A justification defense is negated where the defendant was the initial aggressor(see Penal Law § 35.15 [1] [b]), or where the physical force used bya defendant was "the product of a combat by agreement not specifically authorized bylaw" (Penal Law § 35.15 [1] [c]).
We agree with the defendant that the Supreme Court should not have charged thejury with respect to the combat by agreement exception to the justification defense. Thecourt granted the People's request for the instruction based upon generalized evidencethat the defendant was a member of a gang which had a rivalry with other local gangs,including the gang with which the persons who approached the defendant were affiliated.However, any evidence of an alleged agreement in this case was tacit, open-ended as totime and place, and applicable to all members of the gangs of the parties involved as wellas to all members of their affiliate gangs. The combat by agreement exception tojustification is generally limited to agreements to combat between specific individuals orsmall groups on discrete occasions (see e.g. People v Rollins, 51 AD3d 1279, 1280-1281[2008]; People v Young, 33AD3d 1120, 1124 [2006]; People v Rosario, 292 AD2d 324, 325 [2002];Matter of Kim H., 112 AD2d 160, 161 [1985]; see also People v Russell,91 NY2d 280 [1998]). As there was no evidence of a combat agreement between thedefendant and the specific persons who approached him on the bus, or among rival gangmembers during a discrete period of time or at a specific location, there was noreasonable view of the evidence that the combat by agreement exception applied tonegate a justification defense in this case (see generally People v Watts, 57 NY2d299, 301 [1982]).
However, under the circumstances of this case, the error in the charge was harmless.The evidence that the defendant was the initial aggressor employing deadly physicalforce, which negated the justification defense, was overwhelming, and there was noreasonable possibility that the verdict would have been different had the charge beencorrectly given (see People vBrown, 33 NY3d 316, 321 [2019]; People v Petty, 7 NY3d 277, 286 [2006]; People v Jones, 3 NY3d491, 497 [2004]).
Contrary to the defendant's contention, certain Facebook messages of the defendantwere properly admitted into evidence since they were "relevant to the issue of thedefendant's motive and to his claim of justification, and explained the relationshipbetween the parties" (People vBruno, 127 AD3d 986, 986 [2015]; see People v Bailey, 32 NY3d 70, 83 [2018]). TheFacebook messages were not "merely cumulative" of other evidence (People vVentimiglia, 52 NY2d 350, 361 [1981]). The court providently exercised itsdiscretion in determining that the probative value of the messages outweighed the risk ofprejudice to the defendant, and the limiting instruction given to the jury served toalleviate any prejudice resulting from the admission of the evidence (see People v Harris, 26 NY3d1, 5 [2015]; People vMagnan, 173 AD3d 1214, 1216 [2019]).
The Supreme Court providently exercised its discretion in precluding the defendantfrom proffering expert testimony with regard to the topic of adolescent braindevelopment, since the impulsiveness of adolescents is not a matter beyond the ken ofthe typical juror (see generallyPeople v Santi, 3 NY3d 234, 246-247 [2004]; People v White, 75 AD3d109, 124 [2010]).
The Supreme Court also providently exercised its discretion in denying thedefendant's request for a missing witness charge in relation to the rival gang memberswho approached him on the bus. The defendant's request for the charge was untimely, asit was not made until the close of all evidence (see People v Whitlock, 95 AD3d 909, 910 [2012]). In anyevent, the People established that they lacked control over the uncalled witnesses and thatthe testimony of those potential witnesses would have been cumulative to the eyewitnessaccounts and the surveillance video footage that was already in evidence at trial (see People v Valentin, 173AD3d 1436, 1440 [2019]; People v Wright, 58 AD3d 543, 543 [2009]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Mastro, J.P., Leventhal,Maltese and Brathwaite Nelson, JJ., concur.