Opinion
2014–06453 Ind.No. 7407/11
05-01-2019
The PEOPLE, etc., Respondent, v. Andrew JACKSON, Appellant.
Paul Skip Laisure, New York, N.Y. (Alexis A. Ascher and Melissa Lee of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Joyce Adolfsen of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Alexis A. Ascher and Melissa Lee of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Joyce Adolfsen of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
The defendant was arrested and charged with, inter alia, murder in the second degree, kidnapping in the first degree, and robbery in the first degree. The charges stem from the abduction of the victim from a Brooklyn street by the defendant and accomplices. During the abduction, the victim suffered a heart attack, from which he ultimately died. The defendant and his accomplices left the victim lying on a sidewalk and fled on foot from the scene.
Contrary to the defendant's contention, the record of the pretrial Huntley hearing (see People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ) shows that at the outset of a custodial interview by the police, the defendant made an intelligent, knowing, and voluntary waiver of his Miranda rights (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ), and that his statements to the police were not the product of coercion (see People v. Mateo , 2 N.Y.3d 383, 413–414, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bethea , 159 A.D.3d 710, 71 N.Y.S.3d 589 ; People v. Booker , 49 A.D.3d 658, 658, 854 N.Y.S.2d 430 ; People v. Sepulveda , 40 A.D.3d 1014, 1014, 837 N.Y.S.2d 220 ).
We agree with the Supreme Court's determination to deny the defendant's request to instruct the jury on the affirmative defense of duress. Viewing the evidence in the light most favorable to the defendant, no reasonable view of the evidence supported charging the jury with this affirmative defense (see People v. Butts , 72 N.Y.2d 746, 750, 536 N.Y.S.2d 730, 533 N.E.2d 660 ; People v. Watts , 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 ; People v. Fraser , 134 A.D.3d 734, 735, 22 N.Y.S.3d 70 ). Contrary to the defendant's contention, no reasonable view of the evidence supported a finding that he was subjected to "the use or threatened imminent use of unlawful physical force upon him" ( Penal Law § 40.00[1] ; see People v. Fraser , 134 A.D.3d at 735, 22 N.Y.S.3d 70 ). The defendant failed to present any evidence of an immediate threat from his accomplices (see People v. Morrison , 133 A.D.3d 892, 893, 19 N.Y.S.3d 436 ; People v. Morson , 42 A.D.3d 505, 506, 839 N.Y.S.2d 229 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., MALTESE, LASALLE and BARROS, JJ., concur.