Opinion
1040 KA 13-01079.
10-02-2015
The PEOPLE of the State of New York, Respondent, v. Ezeiekile NAFI, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him following a jury trial of manslaughter in the first degree (Penal Law §§ 20.00, 125.20[1] ) as a lesser included offense of murder in the second degree (§§ 20.00, 125.25 [1] ), defendant contends that the verdict is against the weight of the evidence and that the evidence is legally insufficient to support the conviction because the evidence at trial was insufficient to establish either that he intended to cause the victim serious physical injury or that he aided and abetted the perpetrators who inflicted the fatal stab wounds. “Given defendant's failure to argue with particularity that the evidence was legally insufficient to prove that he acted with the requisite mens rea,” we conclude that defendant's current challenge to the sufficiency of the evidence concerning his mens rea has not been preserved for our review (People v. Carncross, 14 N.Y.3d 319, 325, 901 N.Y.S.2d 112, 927 N.E.2d 532 ; see People v. Vanderhorst, 117 A.D.3d 1197, 1198, 984 N.Y.S.2d 688, lv. denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 ; see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ).
In any event, we conclude that defendant's challenges to the weight and sufficiency of the evidence are without merit. “A person is guilty of manslaughter in the first degree when ... [w]ith intent to cause serious physical injury to another person, he [or she] causes the death of such person or of a third person” (Penal Law § 125.20[1] ). Thus, in order for defendant to be found guilty of manslaughter in the first degree as an accomplice, the People had to establish that, “when [defendant] aided [those] whose acts resulted in the death of a person, [he] did so with the intent to cause serious physical injury to the victim” (People v. Vasquez, 179 Misc.2d 854, 866, 686 N.Y.S.2d 624, affd. 298 A.D.2d 230, 748 N.Y.S.2d 562, lv. denied 100 N.Y.2d 543, 763 N.Y.S.2d 9, 793 N.E.2d 423 ; see People v. Browne, 307 A.D.2d 645, 645–646, 763 N.Y.S.2d 695, lv. denied 1 N.Y.3d 539, 775 N.Y.S.2d 244, 807 N.E.2d 294 ).
Addressing first the sufficiency of the evidence, we conclude that, “[v]iewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference, as we must” (People v. Bay, 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 ), the evidence is legally sufficient to establish that defendant intended to cause serious physical injury to the victim (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although the evidence established that the stab wounds inflicted by defendant were not the fatal stab wounds, “[t]he evidence that defendant stabbed the victim multiple times is legally sufficient to establish that defendant intended to cause serious physical injury to the victim” (People v. Simpson, 35 A.D.3d 1182, 1182, 826 N.Y.S.2d 547, lv. denied 8 N.Y.3d 990, 838 N.Y.S.2d 494, 869 N.E.2d 670 ; see People v. Rivera, 23 N.Y.3d 112, 124, 989 N.Y.S.2d 446, 12 N.E.3d 444 ; People v. Collins, 43 A.D.3d 1338, 1338, 842 N.Y.S.2d 624, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879 ; cf. People v. Stevens, 153 A.D.2d 768, 769, 544 N.Y.S.2d 889, affd. 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278 ).
Defendant further contends that, by acquitting him of intentional murder, the jury necessarily decided that he was not an accessory of the other participants and was thus liable for only his conduct and could not be guilty of manslaughter based on the actions of the other perpetrators. We reject that contention. “Accessorial liability requires only that defendant, acting with the mental culpability required for the commission of the crime, intentionally aid another in the conduct constituting the offense” (People v. Chapman, 30 A.D.3d 1000, 1001, 816 N.Y.S.2d 256, lv denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [internal quotation marks omitted] ). Here, the evidence established that defendant “intended to cause serious physical injury to the victim and that death resulted” (People v. Lewis, 300 A.D.2d 827, 828, 752 N.Y.S.2d 172, lv. denied 99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 ; see People v. Rutledge, 70 A.D.3d 1368, 1369, 894 N.Y.S.2d 668, lv. denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 ; see also People v. Monaco, 14 N.Y.2d 43, 47, 248 N.Y.S.2d 41, 197 N.E.2d 532 ). The fact that the jury acquitted defendant of intentional murder establishes only that, when defendant aided those whose acts resulted in the victim's death, defendant did not do so with the intent to cause death.
For the same reasons, we conclude that the verdict is not against the weight of the evidence (see Rutledge, 70 A.D.3d at 1369, 894 N.Y.S.2d 668 ; Chapman, 30 A.D.3d at 1001, 816 N.Y.S.2d 256 ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention, his rights to due process and a fair trial, and his right of confrontation were not violated when Supreme Court allowed a prosecution witness to testify that defendant nodded in agreement to a statement made by a nontestifying codefendant. Defendant's nonverbal response was admissible as an adoptive admission (see People v. Campney, 94 N.Y.2d 307, 311–312, 704 N.Y.S.2d 916, 726 N.E.2d 468 ; see generally People v. Lourido, 70 N.Y.2d 428, 433, 522 N.Y.S.2d 98, 516 N.E.2d 1212 ), and the court properly instructed the jury in accordance with Lourido that the codefendant's statements were being admitted solely to establish defendant's “reaction ... to that statement ... [and] not for the truth of the statement” made by the codefendant (see Campney, 94 N.Y.2d at 316–317, 704 N.Y.S.2d 916, 726 N.E.2d 468 ).
We agree with the People that the court properly allowed the same prosecution witness to testify at trial that, when he observed police officers near the scene of the homicide, he went to the crime scene “looking for ... [t]he body ... To see if it was true ... That they had killed somebody.” Those statements were not offered for their truth but, rather, “[were] properly admitted to explain [the witness's] presence at the scene, and to avoid speculation by the jury” (People v. Baez, 7 A.D.3d 633, 633, 777 N.Y.S.2d 162 ; see generally People v. Tosca, 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ). Although defendant now contends that the court erred in failing to issue limiting instructions to the jury, that contention is not preserved for our review because “defendant failed to request that the court instruct the jury as to the proper use of that testimony” (People v. Wisdom, 120 A.D.3d 724, 726, 991 N.Y.S.2d 141, lv. denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 ; see People v. Martinez, 100 A.D.3d 537, 538, 954 N.Y.S.2d 91, affd. 22 N.Y.3d 551, 983 N.Y.S.2d 468, 6 N.E.3d 586 ; People v. Tucker, 291 A.D.2d 663, 665, 738 N.Y.S.2d 710, lv. denied 98 N.Y.2d 703, 747 N.Y.S.2d 422, 776 N.E.2d 11 ). Moreover, “[a]ny error in the court's failure to sua sponte issue a limiting instruction was harmless. The evidence of the defendant's guilt was overwhelming and there was no significant probability that the defendant would have been acquitted had the court given a limiting instruction with respect to this evidence” (Wisdom, 120 A.D.3d at 726, 991 N.Y.S.2d 141 ; see generally People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). Based on the foregoing, we further conclude that the admission of the testimony and “the absence of a limiting instruction did not deprive the defendant of a fair trial” (Wisdom, 120 A.D.3d at 726, 991 N.Y.S.2d 141 ), and thus the court properly denied defendant's request for a mistrial based on the admission of that testimony (see CPL 280.10[1] ).
Contrary to defendant's further contention, the court properly denied defendant's request for a jury instruction on the affirmative defense of duress (see Penal Law § 40.00[1] ). The testimony and exhibits admitted at trial, “when ... viewed in the light most favorable to defendant, did not create a reasonable view of the evidence supporting such a charge” (People v. Thompson, 34 A.D.3d 325, 325, 825 N.Y.S.2d 26, lv. denied 8 N.Y.3d 885, 832 N.Y.S.2d 497, 864 N.E.2d 627 ). While there was evidence that one of the other perpetrators threatened to kill defendant if he told anyone about the homicide, “[p]ost-crime threats and force are irrelevant as a matter of law” (People v. Staffieri, 251 A.D.2d 998, 998–999, 674 N.Y.S.2d 885 ). To the extent that defendant contends that he had no choice but to participate because he was told to do so by a higher ranking member of the gang with which he was affiliated, we note that there was no testimony from any witness concerning what higher ranking gang members would do to lesser ranking members if their instructions were disobeyed. In any event, even assuming, arguendo, that such testimony had been presented, we conclude that the defense of duress would not be available because, by voluntarily joining a gang, defendant “intentionally or recklessly place[d] himself in a situation in which it [was] probable that he [would] be subjected to duress” by the higher ranking gang members (§ 40.00[2] ; see People v. Morson, 42 A.D.3d 505, 506, 839 N.Y.S.2d 229, lv. denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 ).
Finally, we reject defendant's contentions that the court abused its discretion in denying his request for youthful offender status and that the sentence is unduly harsh and severe. “The decision ‘whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case’ ” (People v. Williams, 204 A.D.2d 1002, 1002, 614 N.Y.S.2d 954, lv. denied 83 N.Y.2d 973, 616 N.Y.S.2d 26, 639 N.E.2d 766 ). Given the particularly heinous nature of the crime perpetrated on the 16–year–old victim, there is “no basis to conclude that the court abused its discretion in refusing to grant defendant youthful offender status,” and we decline to modify the sentence (id. ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.