People v. Ewers

• Citation: 145 N.Y.S.3d 832 (Mem),195 A.D.3d 857
• Decision Date: 16 June 2021
• Docket Number: Ind. No. 1800/15,2017-06737
• Parties: The PEOPLE, etc., respondent, v. Deon EWERS, appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 857

145 N.Y.S.3d 832 (Mem)

The PEOPLE, etc., respondent,

v.Deon EWERS, appellant.

2017-06737

Ind. No. 1800/15

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

Argued—April 1, 2021

June 16, 2021

Steven A. Feldman, Manhasset, N.Y. (Arza Feldman of counsel), for appellant, and appellant pro se.

Joyce Smith, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley and John B. Latella of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Meryl J. Berkowitz, J.), rendered May 23, 2017, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree in connection with a shooting that occurred during the morning of November 6, 2015, in the attic bedroom of the home of the defendant's estranged wife. The victim was the defendant's estranged wife's paramour who, on occasion, stayed overnight at the subject home. In a statement to the police, the defendant claimed that the victim was the initial aggressor and that the defendant shot him after disarming the victim.

The defendant's contention that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt (see People v. Francis, 187 A.D.3d 586, 131 N.Y.S.3d 342 ; People v. O'Brien, 270 A.D.2d 433, 705 N.Y.S.2d 258 ; People v. White, 178 A.D.2d 672, 577 N.Y.S.2d 896 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the jury's rejection of the defendant's justification defense and the verdict of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

Contrary to the defendant's contention, the Supreme Court correctly denied his application to instruct the jury on the lesser included offenses of manslaughter in the first and second degrees. When viewing the evidence in the light most favorable to the defendant (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ), there is no reasonable view of the evidence that would support a finding that the defendant acted with anything less than homicidal intent (see People v. Arjun, 188 A.D.3d 1235, 1237, 132 N.Y.S.3d 783 ; People v. Ortiz, 151 A.D.3d 754, 57 N.Y.S.3d 183 ; People v. Gonzalez–Alvarez, 129 A.D.3d 647, 12 N.Y.S.3d 91 ; People v. Barden, 194 A.D.2d 548, 598 N.Y.S.2d 87 ).

Contrary to the defendant's contention, the admission of several autopsy photographs was proper, as the photos were "neither excessively gruesome nor introduced for the sole purpose of arousing the jurors' passions and prejudicing the defendant, but ... were properly admitted to illustrate and corroborate the testimony of the medical examiner who performed the autopsy" and to prove the defendant's intent to kill the victim and disprove his justification defense ( People v. Duren, 130 A.D.3d 842, 842, 13 N.Y.S.3d 512 [internal quotation marks omitted]; see People v. Byrd, 116 A.D.3d 875, 876, 983 N.Y.S.2d 406 ; People v. Lawson, 114 A.D.3d 962, 963, 980 N.Y.S.2d 586 ; People v. Allan, 41 A.D.3d 727, 727–728, 839 N.Y.S.2d 771 ).

The defendant failed to preserve for appellate review his contention, raised in his pro se supplemental brief, that the Supreme Court should have instructed the jury on the defense of temporary and lawful possession of a weapon, "as nothing in the record indicates that he sought inclusion of this charge or objected to its omission" ( People v. Baker, 188 A.D.3d 1444, 1445, 132 N.Y.S.3d 894 ; see CPL 470.05[2] ; People v. Pena, 100 A.D.3d 1024, 1024, 955 N.Y.S.2d 157 ). In any event, the defendant would not have been entitled to a jury instruction on the defense of temporary and lawful possession of a weapon, "as there was no reasonable view of the evidence that the defendant had a legal excuse for...