Opinion
715 KA 16–01477
07-31-2019
The PEOPLE of the State of New York, Respondent, v. Jarvis RICHARDSON, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of assault in the second degree ( Penal Law § 120.05[1] ), defendant contends that County Court erred in denying his request to charge the jury on the defense of justification insofar as it applied to the use of force in defense of a third person. We reject that contention. Viewing the record in the light most favorable to defendant, as we must (see People v. Reynoso, 73 N.Y.2d 816, 818, 537 N.Y.S.2d 113, 534 N.E.2d 30 [1988] ), we conclude that there is no reasonable view of the evidence from which the jury could have found that defendant reasonably believed that the victim, a 59–year–old unarmed man, presented a risk of imminent harm to defendant's mother, who, at the time of the assault, was inside her residence, several blocks away from the scene of the assault (see People v. Adams, 259 A.D.2d 299, 299, 688 N.Y.S.2d 1 [1st Dept. 1999], lv denied 93 N.Y.2d 922, 693 N.Y.S.2d 505, 715 N.E.2d 508 [1999] ; cf. People v. Rivera, 138 A.D.2d 169, 174, 530 N.Y.S.2d 802 [1st Dept. 1988], lv denied 72 N.Y.2d 923, 532 N.Y.S.2d 857, 529 N.E.2d 188 [1988], amended on other grounds 143 A.D.2d 601 [1st Dept. 1988] ; People v. Emick, 103 A.D.2d 643, 656, 481 N.Y.S.2d 552 [4th Dept. 1984] ). Although the victim had struck defendant's mother earlier that day, causing minor injuries, and then had allegedly called her on the telephone and threatened to kill her, there was no evidence that any " ‘threatened harm [to defendant's mother was] imminent ’ " ( People v. Jones, 142 A.D.3d 1383, 1384, 38 N.Y.S.3d 357 [4th Dept. 2016], lv denied 28 N.Y.3d 1073, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016] ), and "any conduct by the victim that might have been a basis for a justification defense [related to defendant's mother] had abated by the time defendant committed the assault" ( People v. Sparks, 132 A.D.3d 513, 514, 17 N.Y.S.3d 423 [1st Dept. 2015], affd 29 N.Y.3d 932, 51 N.Y.S.3d 14, 73 N.E.3d 354 [2017] ).
We also reject defendant's further contention that his retained trial attorney was ineffective in failing to request a justification charge with respect to defense of self. In his statements to law enforcement and his testimony at trial, defendant asserted that, when he confronted the victim about the earlier assault of his mother, the victim assumed an "aggressive stance" and swung at defendant, who was a taller and much younger man with an "athletic build." Even assuming, arguendo, that such a charge, if requested, would have been warranted under these circumstances, we conclude that defendant has failed to establish "the absence of strategic or other legitimate explanations" for defense counsel's action ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Throughout the trial, defense counsel pursued a theory that defendant punched the victim twice, but left him responsive, conscious, and relatively uninjured in a high crime area where a second person then preyed upon the victim, causing the victim's significant injuries. That defense was buttressed by eyewitness testimony that the person seen "stomping" on the victim at least 19 or 20 times was wearing different clothing from defendant. We thus conclude that "defense counsel's decision to advance the misidentification defense was consistent with strategic decisions of a reasonably competent attorney" ( People v. Ortiz, 167 A.D.3d 1562, 1563, 90 N.Y.S.3d 793 [4th Dept. 2018], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 235, 124 N.E.3d 724 [2019] [internal quotation marks omitted], quoting People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ) inasmuch as the justification in defense of self charge "would have been weak, at best, and ... might have undermined a stronger defense" ( People v. Rhodes, 281 A.D.2d 225, 226, 723 N.Y.S.2d 2 [1st Dept. 2001], lv denied 96 N.Y.2d 906, 730 N.Y.S.2d 804, 756 N.E.2d 92 [2001] ; see People v. Davis, 293 A.D.2d 486, 486, 739 N.Y.S.2d 635 [2d Dept. 2002], lv denied 98 N.Y.2d 674, 746 N.Y.S.2d 463, 774 N.E.2d 228 [2002] ). To the extent that defendant contends that the court should have charged justification in defense of self even in the absence of a request, we conclude that the " ‘court did not err in refraining from delivering such a charge sua sponte, as this would have improperly interfered with defense counsel's strategy’ " ( People v. Patterson, 115 A.D.3d 1174, 1176–1177, 982 N.Y.S.2d 234 [4th Dept. 2014], lv denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 [2014] ; see People v. Johnson, 136 A.D.3d 1338, 1339, 25 N.Y.S.3d 474 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ).
We have reviewed defendant's remaining contentions and conclude that they lack merit.