People v. Brown

• Decision Date: 20 February 2018
• Docket Number: 4634,Ind. 971/14
• Citation: 71 N.Y.S.3d 422,160 A.D.3d 39
• Parties: The PEOPLE of the State of New York, Respondent, v. Darryl BROWN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 39

71 N.Y.S.3d 422

The PEOPLE of the State of New York, Respondent,

v.Darryl BROWN, Defendant–Appellant.

4634

Ind. 971/14

Supreme Court, Appellate Division, First Department, New York.

ENTERED: FEBRUARY 20, 2018

Kohler & Isaacs, LLP, New York (Joey Jackson of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg and Justin Braun of counsel), for respondent.

Rosalyn H. Richter, J.P., Judith J. Gische, Barbara R. Kapnick, Marcy L. Kahn, Cynthia S. Kern, JJ.

RICHTER, J.P.

In this homicide prosecution, we are asked to determine whether the trial court erred in denying defendant's request to instruct the jury on the defense of justification. We find that, viewing the evidence at trial in the light most favorable to defendant, a jury could conclude that defendant feared for his life, and reasonably believed deadly physical force was necessary to defend himself against the deceased's imminent use of deadly physical force. Under the circumstances here, the court's failure to give the justification charge constitutes reversible error, and the case must be remanded for a new trial.

Defendant Darryl Brown was charged with murder in the second degree, manslaughter in the first degree, and criminal use of a firearm in the first degree, based on allegations that he fatally shot Vonde Cabbagestalk on March 20, 2014. The evidence at trial established the following. On the day of the incident, defendant lived with his daughter in apartment 1B at 739 East 242nd Street in the Bronx. On the afternoon of that day, Yvette Flores, who lived directly across the hall in apartment 1A, heard a loud voice arguing. Flores looked through the peephole in her door and saw defendant and his daughter, who was holding a child, standing in front of their apartment with a younger man. Flores heard defendant and the younger man arguing, but was unable to hear what they were saying. Flores then saw the two men walk off together toward the direction of the building's lobby and out of her line of sight. Defendant's daughter remained at the apartment door with the child.

Although Flores could no longer see the men after they walked off, she heard them arguing and cursing, but did not hear any specific threats. She heard defendant's daughter yell, "[N]o daddy no," followed immediately by a loud boom. Flores initially moved away from her door, but returned to look through the peephole, where she saw defendant, his daughter and the child go into their apartment. Flores went into the hallway and saw a man lying by the front door of the lobby, motionless, and called 911. Flores testified that she did not see the actual shooting incident and never saw a gun or any other weapon during the encounter.

Raymond Wolf, a postal carrier, was delivering mail to the building that afternoon. Two young men who were standing in the lobby let Wolf in. Wolf, who was listening to music on his headphones, went off to the side of the lobby to place the mail into the mailboxes. At some point, Wolf noticed a shorter, older man enter the lobby area. The older man and the two young men were talking at first, and then the conversation became louder. The older man said, "[W]hy you here," "stay away from my daughter, don't come around here." One of the young men, later identified as the deceased, Vonde Cabbagestalk, responded, "[Y]ou can't tell me where to be." Cabbagestalk was "getting in the older guy's face a little bit," "trying to back him down." The older man stepped back, and the third man restrained Cabbagestalk, telling him to "chill out, relax."

Cabbagestalk started swinging at the older man, trying to hit him in the face. After Cabbagestalk swung "a couple [of] times," Wolf noticed the older man holding a gun "at an angle" by his waist. The gun was not "pointed in [Cabbagestalk's] direction" or "threatening him," but was "[k]ind of by [the older man's] body. The third man stepped away, still trying to calm Cabbagestalk down, asking him to stop advancing toward the older man. Cabbagestalk, however, continued to swing at the older man's face three to four times, using both hands. At the same time, Cabbagestalk was "grabbing" for the gun, saying, "[Y]ou going to pull a gun out, you better use it." Wolf testified that the older man, who was not at all "hyper," "continued to backup" "[a]nd backup," "[a]nd backup" as Cabbagestalk "continued to approach him," "continued to swing at him," and "continue[d] to swipe at the weapon." Wolf described Cabbagestalk as being "about two feet [from] the older [man]," who was "leaning back," "moving from the swings." Although Wolf did not actually see the flash from the gun, he heard a shot ring out and saw Cabbagestalk fall to the floor. Wolf retreated upstairs and called his supervisor.¹

Sheila Thomas, who lived in the building, was returning home from grocery shopping that day. As she approached the interior door to the building, she was holding her groceries and searching for her keys. Thomas heard voices arguing inside, and although she did not hear what they were saying, she could tell it was a disagreement. Looking through the windows of the foyer door into the building, Thomas saw two men in the lobby. One of the men was older than the other and had "a little weight" on him; the younger man was taller, "probably slender." Thomas observed the older man walking across the lobby away from the younger man, and the younger man following him. Both were walking in the same direction "at a slow pace," about six to seven feet from each other. As the younger man followed the older man, the older man gestured with his hands, but never turned around to face the younger man. Thomas saw nothing in the older man's hands.

Thomas described how the younger man had his hands extended outward from his body, elbows bent at 90 degrees, with his palms facing upward. Based on those gestures, it appeared to Thomas that the younger man was "trying to reason" with the older man. The two men walked across the hallway and out of Thomas's field of vision, continuing to argue. She heard a gunshot from the direction where the men had just walked, saw the younger man fall backwards in front of the door, and heard a woman scream. Thomas fled outside, ran down the block and called 911. Before she heard the gunshot, Thomas did not observe any physical altercation between the men, saw no punches being thrown, and saw no weapons.

When the police arrived, they observed a man lying face down in the lobby with a single shell casing next to him; he was pronounced dead at the scene. During their canvass of the building, the police spoke to Flores, who directed them to defendant's apartment. Defendant let the police inside, where they recovered a semiautomatic Glock pistol in a kitchen drawer. The police later learned that defendant was a New York City corrections officer who legally possessed the gun. Testing revealed that the shell casing found in the lobby had been fired from defendant's gun. The deceased was subsequently identified as Vonde Cabbagestalk, a 21–year-old man who had been dating defendant's daughter.²

Prior to summations, defendant asked the court to instruct the jury on the defense of justification. The court denied the request, believing that there was no reasonable view of the evidence to support a justification charge. The jury rendered a verdict finding defendant not guilty of murder in the second degree and guilty of manslaughter in the first degree.³ The court sentenced defendant to 18 years in prison. Defendant now appeals, arguing that the court erred in failing to charge the jury on justification.⁴

A trial court must instruct the jury on the defense of justification where the evidence, viewed in the light most favorable to the defendant, reasonably supports the defense ( People v. Padgett, 60 N.Y.2d 142, 144–145, 468 N.Y.S.2d 854, 456 N.E.2d 795 [1983] ; People v. Gant, 282 A.D.2d 298, 299, 725 N.Y.S.2d 299 [1st Dept. 2001] ). "[I]f on any reasonable view of the evidence, the fact finder might have decided that defendant's actions were justified, the failure to charge the defense constitutes reversible error" ( Padgett, 60 N.Y.2d at 145, 468 N.Y.S.2d 854, 456 N.E.2d 795 ). "Ordinarily, the possibility of the defense would not appear until injected by the defendant. However, the prosecution's case, in and of itself, may raise an issue of fact as to whether the defendant was justified in using force such that his or her conduct was entirely lawful" ( People v. Singh, 139 AD3d 761, 763, 31 N.Y.S.3d 168 [2d Dept. 2016] [internal quotation marks and citation omitted], lv. denied 28 NY3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ).

The use of "deadly physical force" upon another person is justified where the defendant "reasonably believes that such other person is using or about to use deadly physical force" ( Penal Law § 35.15[2][a] ). However, a defendant may not use deadly physical force "if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating" (id. ). Nor may a defendant who is the "initial aggressor" use deadly force, with limited exception ( Penal Law § 35.15[1][b] ). " Penal Law § 35.15 requires a jury to consider both subjective and objective factors in determining whether a defendant's conduct was reasonable" ( People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21 [1990] ). Thus, for a defendant to be entitled to a justification charge with respect to the use of deadly physical force, there must be a reasonable view of the evidence: (1) that the defendant actually believed that the use of deadly physical force was necessary to defend himself or herself against the use, or imminent use, of deadly physical force; and (2) that the defendant's belief was reasonable (see Matter of Y.K., 87 N.Y.2d 430, 433–434, 639 N.Y.S.2d 1001, 663 N.E.2d 313 [1996] ; People v. Wesley, 76 N.Y.2d at 559, 561 N.Y.S.2d 707, 563 N.E.2d 21 ; ...