People v. Gibson

• Decision Date: 28 July 2016
• Citation: 141 A.D.3d 1009,35 N.Y.S.3d 806,2016 N.Y. Slip Op. 05668
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. GIBSON, also known as Jo–Jo, Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 1009
35 N.Y.S.3d 806
2016 N.Y. Slip Op. 05668

The PEOPLE of the State of New York, Respondent,
v.
Michael J. GIBSON, also known as Jo–Jo, Appellant.

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

July 28, 2016.

35 N.Y.S.3d 808

George J. Hoffman Jr., Albany, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY, CLARK and MULVEY, JJ.

GARRY, J.

141 A.D.3d 1009

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered October 30, 2012, upon a verdict convicting defendant of the crimes of assault in the second degree and criminal possession of a weapon in the third degree.

In September 2010, defendant allegedly stabbed the victim once with a knife in the abdomen during a late night street altercation in the Village of Endicott, Broome County. Following a trial, the jury acquitted defendant of attempted assault in the first degree, but convicted him of assault in the second degree and criminal possession of a weapon in the third degree. Thereafter, County Court determined that defendant was a second felony offender—a status predicated on a 2003 Oklahoma conviction—and sentenced defendant to an aggregate prison term of six years, followed by five years of postrelease supervision. Defendant appeals.

141 A.D.3d 1010

Defendant contends that the verdict was against the weight of the evidence in that, first, the evidence overwhelmingly supported his justification defense and, second, the People did not prove that he intended to cause injury to the victim. We disagree. “Use of deadly physical force is justified when ... a defendant reasonably believes that such force is necessary ... to protect against the use or imminent use of deadly physical force” (People v. Fisher, 89 A.D.3d 1135, 1137, 932 N.Y.S.2d 218 [2011], lv. denied 18 N.Y.3d 883, 939 N.Y.S.2d 752, 963 N.E.2d 129 [2012] ). As defendant raised the justification defense, it was the People's burden to disprove it by “demonstrat[ing] beyond a reasonable doubt that ... defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary” (People v. Umali, 10 N.Y.3d 417, 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert. denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009] ).

The People presented the testimony of three eyewitnesses to the stabbing, including the victim, the victim's wife and a passerby who observed the incident. The victim testified that defendant and the victim's ex-girlfriend approached the victim and his wife on the street. Defendant demanded that the victim return a camera that he believed the victim had taken from him at a party earlier in the evening. At some point, the victim pushed defendant, and the two engaged in a “shoving match.” The victim stated that he emptied the contents of his pockets, including a box cutter, and gave them to his wife because he believed a fight was imminent. When the two men stopped pushing each other, the victim became aware that he was bleeding, and then realized that he had been stabbed after he saw defendant holding a butterfly knife. According to the victim, defendant stated that “he didn't mean it,” but left the area without offering help. Following the confrontation, police found a closed box cutter—with a lock that prevented it from being opened with one hand—in the pocket of the pants that the victim had been wearing. The victim underwent surgery for a stab wound in the abdominal area,

35 N.Y.S.3d 809

was hospitalized for approximately two weeks and was prescribed pain medication.

On cross-examination, the victim acknowledged that he had initially lied to police by telling them that he did not have the box cutter, because he did not want to get into trouble. He further stated that he could not remember the confrontation clearly because everyone involved was “pretty drunk,” and conceded that he was “not sure” whether he had tried to use his box cutter on defendant, and that, while he did not remember, he “possibly” could have pulled it on defendant first. In her testimony, the victim's wife denied that the victim gave

141 A.D.3d 1011

her the contents of his pockets during the confrontation. She stated that she did not see the victim take out a weapon at any point. She said that, as the victim and defendant scuffled, she saw defendant push the victim in the stomach. The victim then attempted to react but was unable to do so, and the wife realized that he was bleeding.

The passerby, who did not know defendant or the victim before the incident, testified that he observed the confrontation from a distance of approximately 6 to 10 feet. He described defendant and the victim by race and height, testifying that the shorter man, who was about 5 ½ feet tall, approached a man, who was approximately six feet tall, and asked for his phone or camera.¹ One of the men then pushed the other, who pushed back, and the struggle “escalated into the road.” The passerby stated that he had a “[r]eal clear” view of the shorter man pulling out a knife and stabbing the taller man. After the stabbing, according to the passerby, the taller man said, “[Y]ou stabbed me in my rib.” The taller man then “pulled his knife” out of his pocket. The passerby stated that he did not see anything in the taller man's hands before the stabbing, “[b]ut after he did.” He clarified that he was certain that the taller man had nothing in his hands when he was stabbed and that he was “70 percent” sure that there was nothing in the taller man's hands at any point before that. After the stabbing, the passerby left the area and did not see the resolution of the confrontation.

Defendant did not testify, but his sister testified that defendant had told her after the fight that the victim had pulled out a box cutter and tried to cut him with it during the struggle and that defendant had reacted by stabbing him with the butterfly knife. The sister and her husband further testified that the butterfly knife was not defendant's, but belonged instead to...