People v. Sanchez

2017 NY Slip Op 1718, 148 A.D.3d 831, 50 N.Y.S.3d 83

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2017
• Docket: 2014-07787
• Status: Published

Opinions

Appeal by the defendant from a judgment of the County Court, Dutchess County (Forman, J.), rendered August 5, 2014, convicting him of manslaughter in the first degree, assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the convictions of manslaughter in the first degree, assault in the first degree, and assault in the second degree, and the sentences imposed thereon, and dismissing the count in the indictment charging murder in the second degree, without prejudice to the People to re-present any appropriate charges to another grand jury (see People v Beslanovics, 57 NY2d 726 [1982]); as so modified, the judgment is affirmed, and a new trial is ordered on the counts of the indictment charging the defendant with assault in the first degree and assault in the second degree.

The defendant was convicted of manslaughter in the first degree for the June 15, 2013, shooting death of Ines Amigon. He was also convicted of assault in the first degree and assault in the second degree for the shootings of Rolando Baldemar and Sandy Vivaldo, respectively, as well as criminal possession of a weapon in the second degree.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. 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 NY3d 342 [2007]), 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 NY3d 383 [2004]). Upon reviewing the record here, we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The County Court properly denied the defendant’s request to charge manslaughter in the second degree as a lesser-included offense of murder in the second degree since, viewing the evidence in the light most favorable to the defendant, there was no reasonable view of the evidence that would support a finding that the defendant acted recklessly (see People v Dickerson, 67 AD3d 700 [2009]).

The defendant’s contention that the County Court’s charge on accomplice corroboration was improper is without merit (see People v Arena, 69 AD3d 867 [2010]).

However, we agree with the defendant’s contention that the County Court should have submitted a justification defense charge to the jury with respect to the crimes of manslaughter in the first degree, assault in the first degree, and assault in the second degree.

“[A] charge on justification is warranted whenever there is evidence to support it” (People v McManus, 67 NY2d 541, 549 [1986]). Indeed, “if on any reasonable view of the evidence, the fact finder might have decided that defendant’s actions were justified” (People v Padgett, 60 NY2d 142, 145 [1983]), “the trial court should instruct the jury as to the defense and must when so requested” (id. at 144-145). In determining whether a justification charge is warranted, a court must view the record in the light most favorable to the defendant (see People v Petty, 7 NY3d 277, 284 [2006]; People v Singh, 139 AD3d 761, 762 [2016]). Contrary to the conclusion reached by our dissenting colleague and the County Court, we find that there was a reasonable view of the evidence to support the defendant’s request for a justification charge pursuant to Penal Law § 35.15 (2) (b).

In February of 2014, prior to trial, codefendant Armando Martinez-Mendoza, also known as “Balu,” who fired the shots that killed Amigon and wounded the other victims, pleaded guilty to murder in the second degree and two counts of assault in the first degree, and waived his right to appeal. He signed an agreement requiring him to testify against the defendant at the defendant’s trial. The agreement provided that he must testify truthfully.

When viewed in the light most favorable to the defendant, the testimony presented at trial reveals the following. On March 31, 2013, the defendant was at a bar in Newburgh, along with Martinez-Mendoza, when they became involved in a fight with others in the bar. The defendant was stabbed in the abdomen. The defendant was then airlifted to Westchester Medical Center, where he was hospitalized for approximately 10 days. It was the defendant’s understanding that the “word on the street” after that attack upon him was that the attackers never “finished the job.”

Approximately six weeks later, on the evening of June 15, 2013, the defendant, together with a group of companions comprising two men and two women, went to the El Molino restaurant and bar in Poughkeepsie. At trial, the defendant testified that while at El Molino, he went to the bathroom, where he saw an individual called Casper snorting cocaine. Another person, Melvin Hernandez, was also there. When Casper asked the defendant if he wanted to buy drugs, the defendant declined. Casper and Melvin Hernandez started to question the defendant about tattoos on the defendant’s arm. Without warning, Casper punched the defendant in the face, and he fell to the ground. A third person, Roman Berra, then entered the bathroom, and the three men started kicking the defendant while commenting on his tattoos, calling him “pussy” and “mother fucker,” and saying “East Side” repeatedly. The defendant was afraid that he would be stabbed again and thought that his stomach wound from the prior attack had been opened. The defendant testified that the bar “bouncer,” Jermaine Knox, who was also in the bathroom, did nothing to stop the attack, merely blocked the door, and “just stood there.” Knox testified that when he went to the bathroom, he saw the altercation between the defendant and his attackers. The defendant claimed that Casper and his companions left the bathroom laughing, and told the defendant that they would kill him if he ever came back.

According to the defendant, after he was assaulted, he spoke to his male companions, Jonathan Ramirez and Martinez-Mendoza, who was drunk. The defendant had a purple eye and had a sharp pain in the location of his prior stab wound. When one of his female companions asked him if he was okay, the defendant answered that he had to leave because he was getting dizzy. All of them then decided to leave El Molino, and the defendant told one of his female companions to go open the car because he wanted to leave “real quick” so that he could get medical attention. As they were leaving El Molino, Martinez-Mendoza asked the defendant who had attacked him, and the defendant pointed to Casper. The defendant testified that he and his companions “just wanted to get out of there,” and they left on their own. The defendant testified that many people who were in the bar, approximately 10 to 15 of them, followed them outside while threatening them. They told the defendant and his friends not to come back and also threatened to kill the defendant, Ramirez, and Martinez-Mendoza. Outside El Molino, the defendant saw the people who had attacked him earlier in the bathroom, together with 10 to 15 other people. The defendant claimed that they seemed to be “bragging” about what they had done to him. According to Martinez-Mendoza, someone in the crowd said “you’re gonna pay for it” in Spanish. Knox testified that Casper may have continued to be aggressive toward the defendant and his companions after the defendant’s group exited the club. The defendant, along with his two female companions, then started walking toward the car while Ramirez and Martinez-Mendoza stayed behind, trying to keep the people outside the bar away from them. The people were calling the defendant “pussy” and kept repeating “East Side, East Side.” They were also making threats. Martinez-Mendoza told the defendant to go to the car to get a gun from Ramirez’s backpack, because there was going to be trouble. Indeed, the defendant’s female companions, Tania Raya and Milagros Huerta, each testified that while leaving the club, they were both fearful of being injured. On his way to the car, the defendant turned around and saw Ramirez break a beer bottle in an attempt to keep some people away. The defendant quickly walked to the car, where he grabbed the gun from the backpack in the car. He intended for Martinez-Mendoza to use it to scare the people away, and did not believe Martinez-Mendoza would fire the gun. The defendant believed he could not leave without his friends. The defendant testified that the men outside the bar were making threats and that if he did not have “a weapon they would probably hurt us.” He thought that his life and the lives of his friends were in danger. Although there was also a knife in the backpack, he did not take it because he did not think that it would be sufficient to keep the people away. When the defendant returned with the gun to his friends, he observed one of the men who had attacked him in the bathroom reaching into the waist of his pants to obtain what the defendant believed to be a weapon, something he described as being shiny. Amigon, the victim, said something to Casper and grabbed Ramirez’s arm, at which time Martinez-Mendoza grabbed the gun from the defendant’s hand. Martinez-Mendoza shot in Casper’s direction, but Amigon was in front of Casper, in the line of fire, and was shot.

Testifying on behalf of the People as required by his plea agreement, Martinez-Mendoza maintained that when they were outside El Molino, the defendant handed him the gun and then pointed out the man who had hurt him. He testified that he fired the gun because he was angry about “what they did” to the defendant and because he was drunk, but admitted, on direct examination, that at the time of his arrest, he told the investigating police officers that he shot the victim and the others because he felt threatened and was afraid. At trial, he testified that what he told the police had been a lie. Martinez-Mendoza also testified that at the time of his arrest, he had told the police that there was a crowd of people coming after them out of the bar, as many as 20; at trial, he testified that this also was a lie. On cross-examination, Martinez-Mendoza testified that when he spoke to his mother from the police department following his arrest, he told her the same story about the threatening crowd that he told the police. Upon cross-examination, he testified that he lied over and over again to the police about the night of the shooting, but contended that he was being truthful at trial. Martinez-Mendoza did, however, admit during cross-examination that the reason he had the gun and was aiming it at the people outside of El Molino was to protect his friends and to keep the people away from them, that he was fearful for the safety of himself and his friends while they were leaving the club, and that he wanted to protect them.

At the outset, we note that whether the defendant intended for Martinez-Mendoza to use the gun he provided or knew that he would use the gun does not preclude a defense of justification (see People v Magliato, 68 NY2d 24, 28-29 [1986]; People v Giamanco, 188 AD2d 547, 547 [1992]).

Our dissenting colleague’s conclusion that there was no reasonable view of the evidence that would have permitted the jury to find that the defendant acted with justification seems to diminish the import of the well-settled principle that, in determining whether the evidence warrants a justification charge, the court must assess the record in the light most favorable to the defendant (see People v Petty, 7 NY3d at 284; People v Magliato, 68 NY2d at 29; People v McManus, 67 NY2d at 549; People v Padgett, 60 NY2d at 144; People v Watts, 57 NY2d 299, 301 [1982]; People v Irving, 130 AD3d 844, 845 [2015]). We agree that here, some evidence contradicted the defendant’s testimony. However, the record also included evidence, including testimony from Martinez-Mendoza, that, when viewed in the light most favorable to the defendant and drawing all reasonable permissible inferences in his favor, indicated the propriety of charging the justification defense requested by the defendant. Indeed, a justification defense was found to be appropriate in cases where part of a defendant’s testimony was inconsistent with a justification defense (see People v Padgett, 60 NY2d at 144-145), where a defendant’s testimony was in conflict with that of other witnesses (see People v Huntley, 87 AD2d 488 [1982], affd 59 NY2d 868 [1983]; People v Locicero, 87 AD3d 1163, 1164 [2011]), and even where there was “strong” evidence to negate a defendant’s testimony relating to justification (People v Curry, 85 AD3d 1209, 1212 [2011]).

Furthermore, we disagree with the conclusion drawn by our dissenting colleague that the defendant could not have reasonably believed that there was no ability to safely retreat, as demonstrated by the fact that the defendant, along with his female companions, were able to get to the car without incident a few minutes earlier. The use of lethal defensive force is limited to circumstances when the defender cannot “with complete personal safety, to oneself and others,” “avoid the necessity of so doing by retreating” (Penal Law § 35.15 [2] [a]; see People v Aiken, 4 NY3d 324 [2005]). However, the duty to retreat does not arise until the defendant forms a reasonable belief that another person “is using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]). More specifically, the other person’s deadly force must be actually occurring or imminent before the duty to retreat arises (see Matter of Y.K., 87 NY2d 430, 434 [1996]). Here, the evidence, when viewed in the light most favorable to the defendant and drawing all reasonable inferences in his favor, might lead a jury to decide that it was not until the point in time that the defendant returned to his companions with the gun that the threat of deadly physical force was imminent. Thus, the justification defense remained available to this defendant, even though it may have been more prudent for his own safety for him to leave the area of El Molino when he first went to the car to retrieve the gun (see People v Magliato, 68 NY2d at 30; People v McManus, 67 NY2d at 549).

Because there was a reasonable view of the evidence to support a justification charge, the charge should have been given (see People v Petty, 7 NY3d at 284; People v McManus, 67 NY2d at 549; People v Fermin, 36 AD3d 934, 935 [2007]). Further, the error was not harmless since it cannot be said that there was no significant probability that the verdict would have been different if the charge had been given (see People v Irving, 130 AD3d at 845).

Here, the evidence shows that the defendant, indicted on charges of murder in the second degree and assault in the first degree on an acting-in-concert theory, was entitled to assert a justification defense notwithstanding that his codefendant who shot the victims pleaded guilty to those offenses. The right to present a defense is “a fundamental element of due process of law” (Washington v Texas, 388 US 14, 19 [1967]), and one of the “minimum essentials of a fair trial” (Chambers v Mississippi, 410 US 284, 294 [1973]). As an initial matter, to find that Martinez-Mendoza’s plea of guilty precludes the defendant from establishing his entitlement to a justification charge, regardless of whether an examination of the record as a whole would support such a charge, would impermissibly infringe upon the defendant’s right to due process. Second, under the evidence viewed in the light most favorable to the defendant, there is a reasonable view of the evidence that, notwithstanding the plea of guilty, Martinez-Mendoza’s use of deadly and ordinary physical force was justified to protect himself and his friends. In this case, we find it would not be unreasonable for the jury to reject Martinez-Mendoza’s trial testimony as unworthy of belief, as the jury was aware that testifying against the defendant was a condition of Martinez-Mendoza’s plea agreement. Viewing the record as a whole, upon such a determination, it also would not be unreasonable for the jury to conclude that Martinez-Mendoza fired the gun because he was faced with a threatening crowd and feared that deadly physical force was going to be used against himself and his friends. Since the defendant was charged with the shared intent of Martinez-Mendoza, he too was entitled to the defense of justification (see People v Fermin, 36 AD3d at 934; People v Gant, 282 AD2d 298, 299-300 [2001]).

We note, however, that the failure to instruct the jury on the justification defense does not affect the conviction of criminal possession of a weapon (see People v Pons, 68 NY2d 264 [1986]; People v Tasheem, 298 AD2d 411, 412 [2002]).

Accordingly, we modify the judgment by vacating the convictions of manslaughter in the first degree, assault in the first degree, and assault in the second degree, and the sentences imposed thereon, and by dismissing the count in the indictment charging murder in the second degree. As the defendant was convicted of manslaughter in the first degree, charged as a lesser-included offense of murder in the second degree, we dismiss the count of the indictment charging murder in the second degree with leave to the People to re-present any appropriate charges to another grand jury (see People v Gonzalez, 61 NY2d 633 [1983]; People v Beslanovics, 57 NY2d 726 [1982]; People v Andujar, 105 AD3d 756 [2013]; People v Kim, 83 AD3d 866 [2011]; People v Lauderdale, 295 AD2d 539 [2002]).

In light of our determination, we need not reach the defendant’s remaining contentions.

Leventhal, J.P., Cohen and Duffy, JJ., concur.