People v. Colville

• Court: New York Supreme Court Appellate Division
• Citation: 909 N.Y.S.2d 463,79 A.D.3d 189
• Parties: The PEOPLE, etc., respondent, v. Delroy COLVILLE, appellant.
• Decision Date: 05 October 2010

909 N.Y.S.2d 463
79 A.D.3d 189

The PEOPLE, etc., respondent,
v.
Delroy COLVILLE, appellant.

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

Oct. 5, 2010.

909 N.Y.S.2d 465

Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant, and appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

CHAMBERS, J.

79 A.D.3d 190

On this appeal, we primarily address whether the defendant, who was charged with murder in the second degree, was deprived of the effective assistance of counsel when trial counsel, after consulting with the defendant, acceded to the defendant's wish that he withdraw his request to the Trial Judge to include the lesser offenses of manslaughter in the first degree and manslaughter in the second degree in the charge to the jury. We conclude that the defendant was afforded the effective assistance of counsel.

79 A.D.3d 191

I. Factual Background

The defendant stabbed and killed the 20-year-old victim, Gregory Gardner, on the third floor of a single room occupancy dwelling during an altercation.

At the time of the incident, the defendant was renting one bedroom, while Carl J. (hereinafter Carl), Carl's 11-year-old son, Jazeel, and Abnor George occupied the other three bedrooms on the third floor, and the four occupants shared a kitchen.

Carl, Jazeel, and George, while observing different portions of the incident, collectively testified that Gardner, a tenant from a neighboring building, after visiting a friend one floor below, had come up to the third floor and sat in the common kitchen with Carl, Carl's girlfriend Jacqueline,

909 N.Y.S.2d 466

and Jazeel. Some time later, the defendant arrived home, entered his bedroom, and slammed the door to his bedroom. When the defendant emerged from his room and went into the kitchen, Gardner asked him why he was slamming the door. The defendant responded that Gardner did not live there and should "[m]ind [his] business," and then "came [close to Gardner's] face." The defendant struck Gardner, and they started fighting. As they fought and struggled, the defendant fell to the floor. Gardner grabbed an ashtray from the kitchen counter and, holding the defendant in a headlock, struck him in the head with the ashtray, possibly two or three times, leaving him bloodied. George intervened by grabbing the ashtray, and he said, "if you're going to fight, fight like men, [with] no weapon in your hand[s], [and] when you're tired, you stop." The defendant and Gardner struggled further before George separated them, and they were told the fight was over. Gardner grabbed his sweater and, heading to the hallway leading to the stairs, said the fight was finished. The defendant, meanwhile, ran to his room, retrieved his butcher knife, and ran at Gardner. Gardner, although warned by Carl, slipped on a rug, and the defendant stabbed him. Gardner fell to the hallway floor, and the defendant got on top of him and continued to stab him. Jacqueline tried to stop the defendant by getting between him and Gardner, and she shouted for the defendant to stop, that he was going to kill Gardner. The defendant pushed her away, telling her to move and that he had to kill Gardner. In doing so, he cut Jacqueline on the hand. She shouted for Carl to help, and Carl went behind the defendant, but the defendant spun around and sliced Carl's lip. After he cut Carl, the defendant said to Gardner, "go outside and die now. You're not going

79 A.D.3d 192

to beat me up and tell your friend that you beat me up." Gardner walked down the stairs before collapsing outside in front of a tree.

The police arrived on the scene and followed a trail of blood from Gardner to the front steps, the lobby, and up the interior stairs to the third floor. On the third floor, there was blood in the hallway and on the floors, walls, and banisters, but there was no blood in the kitchen. An ashtray, described as heavy, but appearing to lack any blood on it, was found on the kitchen table. The door to the defendant's bedroom was locked, and the officers kicked it down. The defendant, with blood on his head and face, was removed from inside a closet and handcuffed. He blurted out that Carl and Gardner had started an argument with him, that Gardner had grabbed him by the shirt and struck him in the head with an ashtray, and that Gardner "shouldn't have messed with him," a statement which he repeated several times. The defendant said he picked up the knife and defended himself. He led the officers to the vestibule downstairs, where he had placed the knife inside a mailbox.

The defendant was transported to the 67th Precinct where, after being given his Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), he gave both oral and written statements. He stated that approximately two months earlier, Carl had stolen his printer. On the day of the incident, the defendant saw Carl and Gardner, whose name he did not know as he had only seen him a couple of times, sitting in the shared kitchen. The defendant did not speak to Gardner, but went into his bedroom and slammed the door shut. Gardner started yelling at the defendant through the door. The defendant came out, and Gardner aggressively asked him why he was slamming the door. He responded, "[D]on't talk to me. I don't know

909 N.Y.S.2d 467

you." Gardner stood up out of his chair and got in the defendant's face, telling the defendant that he [Gardner] was "carrying [a] grievance" because the defendant had accused him of stealing his printer. The defendant asked Jacqueline to tell Gardner to leave because he did not live in the building. Gardner became more aggressive, grabbing the defendant's clothes and then hitting him over the head, face, and body with a glass ashtray. A struggle ensued during which the defendant picked up a kitchen knife and, while trying to defend himself, stabbed Gardner and cut Carl on his mouth. The defendant claimed it was "all in self-defense," that "a man came into my kitchen beating me up and I defended

79 A.D.3d 193

myself." After he completed his statement, the defendant was taken to the hospital, where he received seven stitches.

An autopsy of Gardner's body revealed that he had sustained six incised wounds and three stab wounds. Three incised wounds ran along the left side of Gardner's trunk, while the other three were along his left arm, wrist, and hand. Two of the stab wounds were on Gardner's left hand, one to the palm, and the other to the back of the hand. The third and likely fatal stab wound was to Gardner's upper left abdominal quadrant. The wound was eight inches deep, running from the front of the body to the back, and left to right, in a downward direction. It penetrated the cartilaginous tissue of the seventh rib inside the chest cavity, to the left diaphragm, the stomach, the duodenum, and stopped at the left kidney, which was removed during surgery. The cut through cartilaginous tissue indicated that "some force" had been used.

The defendant testified on his own behalf. He told the court and jury that he earned his living as a photographer, using a digital printer to make prints that he would then sell. About two months prior to the incident, the defendant was gathering his equipment for a job he had later that evening. He placed some of his equipment out in front of a tree and told Carl, who was outside on the front steps with Gardner and several other people, to keep an eye on it. The defendant went upstairs to his bedroom, retrieved some other equipment, including his photo printer, and placed the printer in the vestibule, again telling Carl to watch it for him. The defendant flagged a taxi cab and placed his things inside but, after going around the block, realized he had left his printer behind. He returned to his building, but the printer was no longer in the vestibule. He accused those sitting in front of the building, who had said he did not leave his printer there, of "conspiring to steal [his] printer," and he cursed at Carl. He told them he would contact the police, and he subsequently made an oral report to the police.

On the day of the incident, the defendant emerged from his bedroom at around 4:00 P.M. to find Carl and Gardner sitting in the kitchen. He thought "something was fishy" because he had never before seen Gardner in the kitchen. The defendant returned to his room, slamming the door behind him. Fifteen minutes later, the defendant went back to the kitchen, and Gardner, alone now, asked why the defendant was slamming the door. The defendant replied, "that is not your business, man. Mind your own business. I don't know you. Don't talk to me."

79 A.D.3d 194

Gardner rose out of his chair, and got in the defendant's face, telling the defendant that he was "carrying a grievance" because the defendant had accused him of stealing his printer. Speaking to Jacqueline, the defendant said for her to tell Gardner "to go where he [was] going," and turned his back to him. Gardner grabbed the defendant by the shirt collar and started to beat him in, among other places, his head and

909 N.Y.S.2d 468

face. "[D]own and almost blacked out," the defendant thought Gardner was going to kill him. He tried to find something and, reaching onto the kitchen counter where his dish drainer was located, he came up with a knife. As he struggled with Gardner, the defendant defended himself. Carl came into the kitchen and tried to hold the defendant from behind while reaching for the knife, but the defendant " flashed" him off. He did not recall George taking the ashtray away from Gardner or breaking up the altercation. The defendant and Gardner continued to struggle, tumbling all over the place which, the defendant explained, was why there was no blood in the kitchen. The defendant still held the knife, and then he saw blood coming...