People v. Grady, 13383.

• Decision Date: 31 May 2007
• Docket Number: 13383.
• Citation: 2007 NY Slip Op 04551,40 A.D.3d 1368,838 N.Y.S.2d 207
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TRACY GRADY, Appellant.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 1368

838 N.Y.S.2d 207

2007 NY Slip Op 04551

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TRACY GRADY, Appellant.

13383.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided May 31, 2007.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered August 14, 2001, upon a verdict convicting defendant of the crimes of attempted murder in the first degree (two counts), assault in the first degree, assault in the second degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree.

SPAIN, J.

Following a jury trial, defendant was convicted on all counts of an indictment charging him with two counts of attempted murder in the first degree and other crimes stemming from his actions in the early morning hours of November 13, 1999 in shooting two uniformed officers of the City of Albany Police Department. The officers, now detectives, Thomas Shea and Stanley Nadoraski, testified at trial that they were on routine patrol in a marked police vehicle on North Swan Street in the City of Albany when they observed defendant, who was the subject of an outstanding domestic violence complaint signed by defendant's former girlfriend two days earlier; the complaint alleged that defendant had broken into her apartment in the middle of the night. After the officers exited their vehicle, Shea spoke with defendant concerning that incident while Nadoraski continued a radio communication with the desk officer to confirm the status of the complaint. When defendant was informed that they would need to arrest him and take him into custody, defendant initially pleaded with them not to arrest him. Defendant then became aggressive and resisted their efforts to place him in handcuffs; a protracted, violent struggle ensued, during which defendant punched, kicked, bit, head butted and wrestled with the officers, causing the trio to enter the street, crashing into nearby parked cars and stoops.

At one point in the struggle, defendant pushed Nadoraski while the officer was reaching for his pepper spray, causing Nadoraski to lose his balance and fall to the ground. Defendant then pushed Shea, causing him to strike a car and fall to the ground, during which defendant grabbed Shea's gun; as Shea started to get up, defendant shot him in the back near his shoulder and the bullet passed through and exited his body. Shea rolled near a parked car to take cover. Defendant then approached Nadoraski, who was still fallen, and fired two shots from about three feet away, striking him first in the face and then in the chest, causing life-threatening injuries. Defendant fled on foot with Shea's gun while Shea grabbed Nadoraski's gun, removing it from its holster, and fired several shots in defendant's direction, but defendant was not hit; Shea returned to the police vehicle and summoned help. Shea's gun was recovered hours later at the apartment of a friend of defendant in the City of Troy, Rensselaer County, and ballistics tests confirmed that the bullets which struck Nadoraski had come from that gun. Defendant was apprehended by Detective Kenneth Wilcox in Atlanta, Georgia on January 15, 2000.

The People also called Kenneth Mackey, who testified that he observed the incident from across the street. Although he did not see the guns and was unable to identify the individuals involved, he described seeing an officer backing up prior to the first shots being fired; he then saw a black male who was wearing a black coat—as described by the officers at trial—point to the ground, and heard two to three shots ring out, and the black male fled. He saw the officer get up and go over to the other side of a car and call out that an officer was down, and run in the direction of the fleeing male.

Defendant did not testify at trial, but pursued alternate defense theories, including that he acted in self-defense and that the officers were shot by "friendly fire" rather than by defendant. Upon his convictions, defendant was sentenced to an aggregate prison term of 50 years to life. Defendant appeals.

As an initial matter, we discern no abuse of discretion in County Court's Sandoval ruling, which represented a carefully crafted compromise after appropriately balancing the probative value of each aspect of defendant's lengthy criminal history against the risk of unfair prejudice (see People v Valderama, 25 AD3d 819, 820-821 [2006], lv denied 6 NY3d 854 [2006]; see also People v Hayes, 97 NY2d 203, 208 [2002]). In so doing, the court precluded entirely the use of defendant's convictions for drug possession, criminal mischief, resisting arrest, reckless endangerment and assault; with regard to two other resisting arrest convictions, the court's compromise permitted inquiry only into the level of the convictions due to their factual similarity with the charged crimes (see People v Long, 269 AD2d 694, 696 [2000], lv denied 94 NY2d 950 [2000]; see also People v Hayes, supra at 208). The court allowed delving into the facts of three convictions—for burglary, drug selling and criminal contempt for intentionally violating a court order of protection—each of which the court correctly determined were reflective of defendant's willingness to place his interests above those of society and were, thus, relevant to defendant's credibility should he testify (see People v Hayes, supra at 207; People v Sandoval, 34 NY2d 371, 377 [1974]; People v Oatman, 12 AD3d 790, 791 [2004], lv denied 4 NY3d 747 [2004]; People v Harris, 304 AD2d 848, 849 [2003], lv denied 100 NY2d 582 [2003]; People v Colon, 307 AD2d 378, 380-381 [2003], lv denied 100 NY2d 619 [2003]).

Next, we find no merit to defendant's primary contention on appeal that County Court erred in denying his request for a justification jury charge (see Penal Law § 35.15; CJI2d[NY] Justification: Use of Deadly Physical Force in Defense of a Person). Viewing the evidence in the light most favorable to the accused, as we are bound to do (see People v Petty, 7 NY3d 277, 284 [2006]), we find, as County Court correctly determined, that, as a matter of law, defendant was not entitled to this charge because "no reasonable view of the evidence establishes the elements of the defense" (People v Reynoso, 73 NY2d 816, 818 [1988]; see People v McManus, 67 NY2d 541, 549 [1986]; People v Watts, 57 NY2d 299, 301 [1982]; accord People v Bolling, 7 NY3d 874, 875 [2006]; People v Petty, supra at 284; see also Penal Law § 35.05 [2] [last sentence]). As relevant here, the defense of justification permits one to use deadly force on another person when, and to the extent, one reasonably believes, subjectively, that it is necessary to defend oneself from what one reasonably believes to be the use or imminent use of deadly physical force, and a reasonable person in defendant's position would have held that belief under the circumstances, an objective consideration, unless the actor was the initial aggressor or was able to safely retreat (see Penal Law § 35.15 [2] [a]; see also People v Watts, supra at 301; People v Damanski, 39 AD3d 1023, 1024 [2007]; People v Young, 33 AD3d 1120, 1122-1123 [2006]; see generally Matter of Y.K., 87 NY2d 430, 433-434 [1996]; People v Reynoso, supra at 818; People v Goetz, 68 NY2d 96, 115 [1986]).

With regard to defendant's subjective belief, defendant did not testify¹ and relied on the testimony of a female witness who observed part of this police encounter and the testimony of a male witness regarding a 1997 encounter between defendant and the police. However, none of the proffered testimony provided a sufficient basis for a jury to determine that defendant reasonably believed that he was in imminent danger of being subjected to deadly force at the time that he shot these officers (see People v Fermin, 36 AD3d 934 [2007]; People v Watts, supra at 302; cf. People v McManus, supra at 549; People v Pritchett, 298 AD2d 411, 412 [2002]).

By all accounts, defendant was the initial aggressor who escalated a routine arrest into a violent confrontation. The officers had not drawn their weapons and Shea was unarmed and still at least partly on the ground when defendant shot him; Nadoraski was on the ground with his gun in his holster when he was shot first in the face and then in the torso, negating any claimed "reasonable belief" on defendant's part that the officers were about to use deadly force (see People v Bolling, supra at 875; People v Ojar, 38 AD3d 684, 685 [2007]; People v Vecchio, 240 AD2d 854, 855 [1997]; cf. People v Francis, 15 AD3d 318, 318 [2005], lv denied 4 NY3d 853 [2005]). Further, since the officers were down, one disarmed, there is no reasonable view of the evidence that defendant—who remained standing and uninjured—had no available avenue of safe retreat or even attempted to retreat (see People v Taylor, 23 AD3d 693, 694 [2005], lv denied 6 NY3d 818 [2006]; People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624 [2003]; see also Penal Law § 35.15 [2] [a]; see generally People v Aiken, 4 NY3d 324 [2005]).

The female defense witness testified to hearing yelling and a scuffle and to observing the officers attempt to restrain and arrest defendant, who was resisting. She described seeing one of the officers hitting defendant in the back and shoulder area with a black object during the struggle. However, she did not see the initial part of the encounter and, after making her limited observations, she went into a nearby bar and did not see the shooting minutes later or what immediately preceded it. Thus, her testimony did not establish either who was the initial aggressor, defendant's ability to retreat or the circumstances at the time that defendant used deadly force.

The testimony offered concerning the encounter in 1997 in which defendant was arrested by members of the Albany Police Department and sustained injures, and later pleaded guilty to resisting arrest, likewise...