Opinion
1099 KA 16–01504
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Mohamed KABA, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
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 of assault in the second degree ( Penal Law § 120.05[2] ). We reject defendant's contention that the evidence is legally insufficient to disprove his justification defense (see People v. Carter, 145 A.D.3d 1567, 1567, 43 N.Y.S.3d 651 [4th Dept. 2016] ). The People established that defendant 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 unknown person, whom he could not describe, holding a "huge blade" or "large knife" and swinging it around, no other witnesses saw anyone with a knife. In addition, defendant testified that the victim did not have a knife and that defendant was not in fear of his life when the victim was on the ground and defendant was slashing him. The People therefore "demonstrate[d] beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary" ( People v. Umali, 10 N.Y.3d 417, 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], rearg. denied 11 N.Y.3d 744, 864 N.Y.S.2d 386, 894 N.E.2d 651 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009] ). We further conclude that, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), including the charge on the defense of justification, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). " ‘[T]he jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded’ " ( People v. Kalinowski, 118 A.D.3d 1434, 1436, 988 N.Y.S.2d 776 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ).
We reject defendant's contention that his right to remain silent was violated and that Supreme Court should have suppressed his statement to the police on that ground. After defendant was arrested and given his Miranda warnings, he invoked his right to remain silent. Defendant was then booked and transported to an area to be held for arraignment. While the transporting officers and defendant were waiting in the lobby, a passing police officer said to the transporting officers, "so you guys got your stabbing suspect?" Defendant responded, "it was not a stabbing, it was a slashing." We conclude that the remark by the officer was not the functional equivalent of interrogation inasmuch as it was not "reasonably likely to elicit a response" ( People v. Ferro, 63 N.Y.2d 316, 319, 482 N.Y.S.2d 237, 472 N.E.2d 13 [1984], cert denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 [1985] ; see Rhode Island v. Innis, 446 U.S. 291, 301–302, 100 S.Ct. 1682, 64 L.Ed.2d 297 [1980] ; People v. Roberts, 121 A.D.3d 1530, 1531, 993 N.Y.S.2d 825 [4th Dept. 2014], lv denied 24 N.Y.3d 1122, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] ). In any event, we conclude that any error in refusing to suppress defendant's statement is harmless beyond a reasonable doubt (see People v. Hough, 151 A.D.3d 1591, 1593, 57 N.Y.S.3d 780 [4th Dept. 2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). In light of the video evidence depicting the incident at issue, there is no question that defendant was the perpetrator of the assault.
Finally, the sentence is not unduly harsh or severe.