People v. Bell
| Decision Date | 03 July 2013 |
| Citation | 2013 N.Y. Slip Op. 05012,108 A.D.3d 795,968 N.Y.S.2d 247 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Tasheem BELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
108 A.D.3d 795
968 N.Y.S.2d 247
2013 N.Y. Slip Op. 05012
The PEOPLE of the State of New York, Respondent,
v.
Tasheem BELL, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
July 3, 2013.
[968 N.Y.S.2d 248]
Matthew J. Leonardo, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, McCARTHY and GARRY, JJ.
LAHTINEN, J.
[108 A.D.3d 795]Appeal from a judgment of the Supreme Court (Milano, J.), rendered September 30, 2011 in Schenectady County, upon a verdict convicting defendant of the crimes of assault in the third degree, reckless endangerment in the first degree, criminal possession of a weapon in the second degree (two counts) and menacing in the second degree, and of the violation of harassment in the second degree.
On September 6, 2010, defendant was involved in a verbal altercation with a female acquaintance, victim A, threatening her with gun violence. That evening, a second verbal altercation ensued between defendant, victim A, and her friend, victim B, where defendant again threatened gun violence. Shortly thereafter, defendant punched victim A in the face and pushed her to the ground. Victim A subsequently enlisted two of her brothers, one of whom had a baseball bat, to confront defendant and, following their arrival, victim B engaged defendant in another verbal altercation, which resulted in defendant firing a number [108 A.D.3d 796]of gun shots, with one of the bullets striking victim B in the leg. Defendant fled and 47 days later a seven-count indictment was returned against him charging two counts of assault in the first degree, reckless endangerment in the first degree, two counts of criminal possession of a weapon in the second degree, menacing in the second degree and harassment in the second degree. Following a jury trial, he was acquitted of the two counts of assault in the first degree, but found guilty of the remaining five counts and assault in the third degree as a lesser included offense of the second count of assault in the first degree. He was thereafter sentenced to an aggregate prison term of 12 years and five years of postrelease supervision. Defendant now appeals contending that Supreme Court erred in denying his request for a justification charge and in instructing the jury regarding flight as evidence of guilt, and also asks this Court to reduce his sentence in the interest of justice.
We affirm. Where, as here, a defendant employs deadly physical force, a justification charge is warranted only if “ ‘there [is] some reasonable view of the evidence presented that [the] defendant reasonably believed that deadly force was being used or was about to be used against him [or her] and that [he or she] was unable to safely retreat’ ” ( People v. Brown, 100 A.D.3d 1035, 1037, 952 N.Y.S.2d 828 [2012...
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