Opinion
2013-05469
07-08-2015
The PEOPLE, etc., respondent, v. Christopher HERON, appellant.
Mark Diamond, New York, N.Y., for appellant, and appellant pro se. Madeline Singas, Acting District Attorney, Mineola, N.Y. (Judith R. Sternberg and Joseph Mogelnicki of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant, and appellant pro se.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Judith R. Sternberg and Joseph Mogelnicki of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Carter, J.), rendered May 13, 2013, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant intended to cause the death of the victim. The defendant's intent can be inferred from his conduct and the surrounding circumstances (see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 ; People v. Edwards, 120 A.D.3d 1435, 992 N.Y.S.2d 368 ; People v. Norris, 98 A.D.3d 586, 949 N.Y.S.2d 472 ; People v. Bryant, 39 A.D.3d 768, 769, 834 N.Y.S.2d 305 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the crime of murder in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The trial court granted the defendant's request to instruct the jury with respect to the lesser-included offense of manslaughter in the first degree, but the jury convicted him of murder in the second degree, as charged in the indictment. Therefore, review of the trial court's refusal to charge the remote lesser-included offenses of manslaughter in the second degree and criminally negligent homicide is foreclosed (see People v. Green, 5 N.Y.3d 538, 545, 807 N.Y.S.2d 321, 841 N.E.2d 289 ; People v. Conroy, 102 A.D.3d 979, 981, 958 N.Y.S.2d 224 ).
“A person is justified in using deadly force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person ... ‘A court need not charge the defense of justification if, considering the record in the light most favorable to the defendant, no reasonable view of the evidence supports it’ ” (People v. Ojar, 38 A.D.3d 684, 684–685, 832 N.Y.S.2d 250, quoting People v. Bennett, 279 A.D.2d 585, 719 N.Y.S.2d 281 [internal quotations omitted] ). Here, contrary to the defendant's contention, the Supreme Court properly denied his request to charge the jury regarding the justification defense, as no reasonable view of the evidence supported such an instruction (see People v. Fowler, 101 A.D.3d 898, 899, 954 N.Y.S.2d 919 ; People v. Cotsifas, 100 A.D.3d 1015, 954 N.Y.S.2d 219 ; People v. Ojar, 38 A.D.3d at 685, 832 N.Y.S.2d 250 ).
The defendant failed to preserve for appellate review his contention that the Supreme Court erred in instructing the jury with respect to the elements of criminal possession of a weapon in the fourth degree (see CPL 470.05[2] ; People v. Bridgeforth, 119 A.D.3d 600, 601, 987 N.Y.S.2d 869, lv. granted 25 N.Y.3d 988, 10 N.Y.S.3d 531, 32 N.E.3d 968 ). In any event, contrary to the defendant's contention, there was evidence showing that the knife allegedly used in this incident constituted a dangerous knife based upon the circumstances of its possession including the behavior of the defendant which demonstrated that he considered it a weapon (see Matter of Jamie D., 59 N.Y.2d 589, 591, 466 N.Y.S.2d 286, 453 N.E.2d 515 ; Matter of Edwin O., 91 A.D.3d 654, 654–655, 937 N.Y.S.2d 94 ; Matter of Sean R., 33 A.D.3d 925, 926, 824 N.Y.S.2d 302 ). Thus, the Supreme Court did not err in instructing the jury that the defendant's possession of the knife was “ ‘presumptive evidence of intent to use [the] same unlawfully against another’ ” (quoting Penal Law § 265.15[4] ; Matter of Sean R., 33 A.D.3d at 926, 824 N.Y.S.2d 302 ).
The defendant's contention that his trial attorney deprived him of his right to testify rests on matters outside the record, and it was therefore not properly raised in his motion to set aside the verdict pursuant to CPL 330.30(1) (see People v. Perry, 266 A.D.2d 151, 151–152, 700 N.Y.S.2d 107 ).In his pro se supplemental brief, the defendant argues that the Supreme Court erred in closing the courtroom doors to latecomers during the trial court's instructions to the jury. That contention is unpreserved for appellate review, and in any event, without merit (see People v. Colon, 71 N.Y.2d 410, 415–416, 526 N.Y.S.2d 932, 521 N.E.2d 1075 ; People v. Bunker, 259 A.D.2d 757, 688 N.Y.S.2d 176 ).
The defendant also failed to preserve for appellate review his contention that the Supreme Court failed to comply with the procedure delineated in People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189, in its handling of two notes by which the jury asked to see certain photographs and videotapes that were in evidence, and requested a clarification of the definition of intent. The alleged failure to comply with the O'Rama procedure did not constitute a mode of proceedings error which would obviate the preservation requirement because it is evident from the record that the Supreme Court complied with its core responsibilities under CPL 310.30 by giving counsel meaningful notice of the content of the jury's notes, and providing a meaningful response to the jury (see People v. Alcide, 21 N.Y.3d 687, 694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ; People v. Cherry, 127 A.D.3d 879, 888–881, 5 N.Y.S.3d 527 ; People v. Pressley, 115 A.D.3d 991, 992, 982 N.Y.S.2d 394 ; People v. Woodrow, 89 A.D.3d 1158, 1160, 932 N.Y.S.2d 236 ). In any event, the defendant's contention that the Supreme Court failed to comply with the O'Rama procedure is without merit (see People v. Evans, 127 A.D.3d 780, 782, 6 N.Y.S.3d 555 ; People v. Nunez, 120 A.D.3d 714, 717, 991 N.Y.S.2d 121 ).
The defendant's right to be present at all material stages of the trial was not violated by his absence during a discussion of notes received from a sworn juror regarding a potential scheduling conflict (see People v. Harris, 99 N.Y.2d 202, 212, 753 N.Y.S.2d 437, 783 N.E.2d 502 ). The defendant's claim that he was denied the effective assistance counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457 ; People v. Credle, 124 A.D.3d 792, 793, 998 N.Y.S.2d 466 ). It is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing this claim in its entirety (see People v. Rivera, 128 A.D.3d 857, 9 N.Y.S.3d 119 ; People v. Verni, 127 A.D.3d 887, 7 N.Y.S.3d 340 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.