People v. Daggett

• Decision Date: 05 May 2017
• Citation: 54 N.Y.S.3d 803,150 A.D.3d 1680
• Parties: The PEOPLE of the State of New York, Respondent, v. Stephen C. DAGGETT, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1680
54 N.Y.S.3d 803

The PEOPLE of the State of New York, Respondent,
v.
Stephen C. DAGGETT, Defendant–Appellant.

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

May 5, 2017.

54 N.Y.S.3d 804

Timothy P. Donaher, Public Defender, Rochester (Danielle C. Wild of Counsel), for Defendant–Appellant.

54 N.Y.S.3d 805

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[2] ). He was acquitted of a greater charge of attempted assault in the first degree (§§ 110.00, 120.10 [1] ). At trial, it was undisputed that defendant stabbed the victim with an object, identified at times as a stick or a fire poker, causing injuries. In his statements to law enforcement officers as well as his testimony before the grand jury, all of which were admitted in evidence at trial, defendant contended that he stabbed the victim in self-defense, alleging that the victim and two others were threatening to attack him. On appeal, defendant contends that Supreme Court erred in several respects when instructing the jury on the justification defense.

First, he contends that the court impermissibly reduced the People's burden of proof when it instructed the jury that, in order to find that the People had failed to disprove the defense of justification, the jury had to find that the victim "and others" were using or about to use deadly physical force on defendant, rather than using the words "or others" (emphasis added). Defendant failed to object to the charge as given to the jury, and his contention that the justification charge impermissibly reduced the People's burden of proof is subject to the rules of preservation (see People v. Benjamin, 204 A.D.2d 996, 996, 612 N.Y.S.2d 517, lv. denied 83 N.Y.2d 1002, 616 N.Y.S.2d 483, 640 N.E.2d 151 ; see also People v. Polk, 118 A.D.3d 564, 565–566, 988 N.Y.S.2d 172, lv. denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 ; People v. Caldwell, 196 A.D.2d 760, 761, 602 N.Y.S.2d 14, lv. denied 82 N.Y.2d 892, 610 N.Y.S.2d 159, 632 N.E.2d 469 ; People v. Vasquez, 176 A.D.2d 444, 444, 574 N.Y.S.2d 542, lv. denied 79 N.Y.2d 865, 580 N.Y.S.2d 737, 588 N.E.2d 772 ; see generally People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 552 N.E.2d 156 ; People v. Thomas, 50 N.Y.2d 467, 471–472, 429 N.Y.S.2d 584, 407 N.E.2d 430 ). In any event, even assuming, arguendo, that the court used an "obviously incorrect word[ ]" when it charged the jury in the conjunctive versus the disjunctive (People v. Murphy, 128 A.D.2d 177, 185, 515 N.Y.S.2d 895, affd. 70 N.Y.2d 969, 525 N.Y.S.2d 834, 520 N.E.2d 552 ), we conclude that any error is harmless inasmuch as defendant, in his admissions, repeatedly contended that the victim and two others were threatening to attack him (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). We thus conclude that defendant failed to establish that defense counsel was ineffective in failing to object to the court's use of that word inasmuch as there was a legitimate reason for defense counsel's failure to object to the charge as given (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see also People v. Carter, 21 A.D.3d 1295, 1296, 801 N.Y.S.2d 464, affd. 7 N.Y.3d 875, 826 N.Y.S.2d 588, 860 N.E.2d 50 ).

Defendant's second challenge to the court's instruction on justification is that the court erred in failing to instruct the jury that defendant had no duty to retreat in his dwelling. Inasmuch as defendant failed to request such an instruction or object to the instruction as given, he has failed to preserve his contention for our review (see People v. Fagan, 24 A.D.3d 1185, 1187, 807 N.Y.S.2d 239 ; People v. Shaut, 261 A.D.2d 960, 961, 690 N.Y.S.2d 372, lv. denied

54 N.Y.S.3d 806

93 N.Y.2d 1045, 697 N.Y.S.2d 877, 720 N.E.2d 97 ; People v. Sanchez, 131 A.D.2d 606, 608, 516 N.Y.S.2d 504, lv. denied 70 N.Y.2d 717, 519 N.Y.S.2d 1053, 513 N.E.2d 1321 ). In any event, we conclude that his contention lacks merit because there is no reasonable view of the evidence that defendant was in his dwelling at the time of the assault (see People v. Aiken, 4 N.Y.3d 324, 329–330, 795 N.Y.S.2d 158, 828 N.E.2d 74 ). We thus likewise reject defendant's contention that defense counsel was ineffective in failing to request such an instruction or object to the instruction as given (see e.g. People v. Johnson, 136 A.D.3d 1338, 1339, 25 N.Y.S.3d 474, lv. denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 ; People v. Peterkin, 89 A.D.3d 1455, 1456–1457, 932 N.Y.S.2d 639, lv. denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 ).

Defendant's third challenge to the justification charge is that the court erred in failing to instruct the jury that it was to cease deliberating and report a verdict of not guilty on all counts if it found defendant not guilty by reason of justification on the top count (see generally People v. Castro, 131 A.D.2d 771, 773–774, 516 N.Y.S.2d 966 ). Defendant, however, failed to request such an instruction or object to the instruction as given and thus failed to preserve that contention for our review (see People v. Velez, 131 A.D.3d 129, 133, 13 N.Y.S.3d 354 ; People v. Palmer, 34 A.D.3d 701, 703–704, 826 N.Y.S.2d 77, lv. denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 ; People v. Green, 32 A.D.3d 364, 365, 820 N.Y.S.2d 271, lv. denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73 ). We note, however, that there was "overwhelming evidence disproving justification, including forensic evidence [disproving defendant's version of the events] and the testimony of [a] ... witness who observed the incident," and we decline to exercise our power to reach the issue as a matter of discretion in...