People v. Every

• Citation: 46 N.Y.S.3d 695,146 A.D.3d 1157,2017 N.Y. Slip Op. 00347
• Parties: The PEOPLE of the State of New York, Respondent, v. Douglas R. EVERY, Appellant.
• Decision Date: 19 January 2017
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 1157
46 N.Y.S.3d 695
2017 N.Y. Slip Op. 00347

The PEOPLE of the State of New York, Respondent,
v.
Douglas R. EVERY, Appellant.

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

Jan. 19, 2017.

46 N.Y.S.3d 698

William T. Easton, Rochester, for appellant.

Kirk O. Martin, District Attorney, Owego, for respondent.

Before: McCARTHY, J.P., GARRY, ROSE, MULVEY and AARONS, JJ.

GARRY, J.

146 A.D.3d 1158

Appeal from a judgment of the County Court of Tioga County (Keene, J.), rendered January 30, 2015, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

In October 2013, defendant caused the victim's death by stabbing him in the chest with a knife. The stabbing occurred in a home located in the Town of Tioga, Tioga County, owned by defendant and shared by defendant, the victim, and a third man named James Atwell. Defendant was charged with murder in the second degree and tampering with physical evidence. The jury acquitted defendant of the charged crimes, but convicted him of manslaughter in the first degree as a lesser included offense of murder in the second degree. County Court denied defendant's CPL 330.30 motion to set aside the verdict and sentenced him to 17 years in prison, to be followed by five years of postrelease supervision. Defendant appeals.

The fact that defendant stabbed the victim was uncontroverted. Immediately after

46 N.Y.S.3d 699

the stabbing, defendant told three people—the victim's mother, a 911 dispatcher and the first law enforcement officer to arrive at the scene—that he had stabbed the victim. The officer saw the victim's body on the kitchen floor. There was blood on a kitchen counter and two knives near the sink; the victim's DNA was later found on the counter and on one of the knives. At trial, defendant raised the defense of justification and further contended that the victim had lunged toward him and impaled himself on the knife. Upon appeal, defendant contends that his conviction was against the weight of the evidence as the People failed to prove beyond a reasonable doubt that he was not justified in using deadly force or that he intended to cause serious physical injury.

The People presented the eyewitness testimony of Atwell, who was in his 80s and confined to a wheelchair. Atwell testified that he and the victim, who was Atwell's caretaker, had resided as tenants in defendant's home for several months before the stabbing occurred. On that day, defendant returned

146 A.D.3d 1159

home from work at about 5:00 p.m. and began drinking alcohol. The victim, who had spent the day working in the garage, came into the house between 7:00 p.m. and 8:00 p.m. and began preparing dinner. Atwell stated that he did not believe that the victim had been drinking alcohol; however, testing later revealed that the victim's blood alcohol content was .27. Almost immediately after the victim entered the house, defendant and the victim began a verbal disagreement, moving from room to room as they argued, and eventually beginning to push and hit each other. Atwell claimed that defendant initiated both the verbal and physical altercations and that he never saw the victim throw defendant around or push him to the floor.

Shortly before 8:00 p.m., defendant left the house, at which point the lights and electricity went off; Atwell stated that he believed that defendant turned off the power. Five or 10 minutes later, defendant came back in, the power was turned on and the argument resumed. Atwell testified that he saw the victim walk from the laundry room into the adjoining kitchen, with defendant following him. In the kitchen, defendant grabbed a knife from the sink area and stabbed the victim in the chest. The victim immediately fell to the floor and did not respond when defendant asked him to get up. Atwell stated that the victim did not lunge toward defendant before the stabbing, that his arms were by his sides and that he had no weapon or other objects in his hands. Defendant called 911 and the victim's mother and then went outside to wait for emergency personnel.

In an interview with investigators later that night, defendant offered an account that differed sharply from that of Atwell. The investigators testified at trial, and a video recording of the interview was admitted into evidence. Defendant claimed that the victim had initiated the altercation, initially by arguing verbally with defendant about various subjects. According to defendant, the victim then "went off," threw defendant around several rooms, onto the floor and against furniture, and tipped over chairs. Defendant left the residence to summon assistance and made several attempts to call 911, but none of the calls went through because the electricity had been turned off—by the victim, according to defendant—which prevented defendant's cell phone signal booster from operating. Subsequent inspection of defendant's cell phone revealed that several incomplete calls were commenced during the pertinent time period; the first three digits of the main line for 911 dispatch

146 A.D.3d 1160

46 N.Y.S.3d 700

were dialed three times, and one attempted call was made to a friend of defendant.¹

Defendant told the officers that he was not fearful of the victim when he went back into the residence, and he did not claim that the victim had a weapon or threatened to use one. He said that the victim continued to yell at him and then "came at him," at which point defendant picked up the knife from a kitchen counter to defend himself. He said that he backed away into the adjoining laundry room, holding the knife and telling the victim to leave him alone; the victim followed him, allegedly saying "go ahead" or "go for it," and, in the laundry room, lunged or ran toward defendant and impaled himself on the knife. Defendant pulled out the knife, and the victim took several steps into the kitchen, where he collapsed.

The first law enforcement officer responding to the scene had observed that the victim had no weapons or other objects in his hands or near where his body lay on the floor. Despite defendant's account of a violent struggle, the investigators testified that defendant's hair and clothing were not disarranged and that he had no visible bruises or injuries other than an abrasion over one eye and a hangnail on his finger. Further, an officer who responded to defendant's residence after the stabbing testified that the house was neat, with no tipped-over furniture or signs of a struggle. Defendant told the investigators that he had made many previous calls to law enforcement to report the victim's abusive behavior toward him, but the evidence established that only two of 18 calls that defendant had placed to police since 2004 involved the victim. In one call, defendant had complained that the victim had flipped over a table, and, in the other, that he did not participate in housework.

James Terzian, a pathologist, testified that he performed an autopsy and determined that the victim had died as a result of blood loss caused by a single stab wound to the chest that was approximately 4 ½ inches deep and reached the right ventricle of his heart. Terzian opined that it would not have been possible for the victim to have caused this wound by impaling himself unless the knife was placed against a wall or other immovable object that prevented it from moving backwards, and that a person holding a knife would not constitute such an immovable object. He further stated that it would have been possible for the victim to move around for 20 or 30 seconds before the wound caused his death. The administrative coroner for Tioga County, who was called to the scene and was present at

146 A.D.3d 1161

the autopsy, testified that the victim's body was lying in the kitchen with no weapons nearby. He stated that the victim's injuries were a stab wound in the chest and a finger abrasion, and that the victim's heart was cut in half.

Several witnesses testified on defendant's behalf that they were familiar with the victim's reputation in the community and that he had a tendency to become argumentative and verbally abusive when he had been drinking alcohol. Defendant's expert forensic pathologist testified that the victim had a very high blood alcohol level that would have impaired his judgment and coordination and interfered with his capacity to feel pain. Contradicting Terzian's testimony, he opined that it would have been possible for the victim to cause the chest wound by lunging forward against a knife held by defendant; however, he agreed with Terzian that the victim would have been able to move around or walk for 20 or 30 seconds before he collapsed.

46 N.Y.S.3d 701

Defendant's family physician testified that he treated defendant after the stabbing for injuries to his wrist, hand and shoulder that defendant claimed were sustained during that night's altercation. Thomas Lazzaro, a forensic psychologist, testified...