People v. Horn, 704

• Decision Date: 20 August 2020
• Docket Number: 704,KA 15-00415
• Citation: 129 N.Y.S.3d 604,186 A.D.3d 1117
• Parties: The PEOPLE of the State of New York, Respondent, v. Jacob A. HORN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1117

129 N.Y.S.3d 604

The PEOPLE of the State of New York, Respondent,

v.Jacob A. HORN, Defendant-Appellant.

704

KA 15-00415

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

Entered: August 20, 2020

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree ( Penal Law § 125.25[1] ). We affirm. The case arose from the violent death of an alleged drug dealer and white supremacist whose body the police found concealed in the cupboard of an abandoned mansion. Defendant has given three inconsistent accounts of the victim's death. First, he told his fiancée that he killed the victim in a rage. Then, he told a police investigator that he killed the victim in self-defense. Later, at trial, he testified that his accomplice coerced him into participating in the murder and subsequently lying to the police.

At the outset, we note that defendant failed to preserve for our review his contention that he was denied his Fourteenth Amendment right to a fair trial by County Court's rulings (see People v. Lane , 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Defendant contends that the evidence is legally insufficient to support the conviction of murder in the second degree because he proved the affirmative defense of duress by a preponderance of the evidence, thereby negating the element of intent. Defendant failed to preserve that contention for our review because his motion for a trial order of dismissal was not " ‘specifically directed’ " at the alleged error ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; cf. People v. Hammond , 84 A.D.3d 1726, 1726, 922 N.Y.S.2d 706 [4th Dept. 2011], lv denied 17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96 [2011] ). In any event, even assuming, arguendo, that defendant established duress, we reject his contention that such a defense would negate the requisite intent to kill (see Penal Law § 125.25[1] ). Duress is an affirmative defense that does not negate any of the elements that the People are required to prove in the first instance, such as intent (see § 40.00; People v. Bastidas , 67 N.Y.2d 1006, 1007, 503 N.Y.S.2d 315, 494 N.E.2d 446 [1986], rearg denied 68 N.Y.2d 907, 508 N.Y.S.2d 946, 501 N.E.2d 595 [1986] ; see also United States v. Leal-Cruz , 431 F.3d 667, 671 [9th Cir. 2005] ). Furthermore, we conclude that defendant's confession to his fiancée and his statement to the police constitute legally sufficient evidence that he intended to kill the victim (see People v. Geddes , 49 A.D.3d 1255, 1256, 856 N.Y.S.2d 336 [4th Dept. 2008], lv denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252 [2008] ).

To the extent that defendant contends that the verdict is against the weight of the evidence with respect to the murder count, we reject that contention. Viewing the evidence in light of the elements of that crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant further contends that the court abused its discretion by allowing the prosecutor to question him about his sex life. More particularly, the prosecutor asked defendant during cross-examination whether he lied to his fiancée in order to convince her to have unprotected sex with him by falsely telling her that he had not had unprotected sex with other women. Insofar as defendant contends that the testimony is irrelevant, we reject his contention. A testifying defendant "may be cross-examined concerning any immoral, vicious or criminal acts of his [or her] life [that] have a bearing on his [or her] credibility as a witness, provided the cross-examiner questions in good faith and upon a reasonable basis in fact" ( People v. Duffy , 36 N.Y.2d 258, 262, 367 N.Y.S.2d 236, 326 N.E.2d 804 [1975], mot to amend remittitur granted 36 N.Y.2d 857, 370 N.Y.S.2d 919, 331 N.E.2d 695 [1975], cert denied 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88 [1975] ). The testimony here was relevant to defendant's credibility and was properly admitted for impeachment purposes (see People v. Chebere , 292 A.D.2d 323, 324, 740 N.Y.S.2d 25 [1st Dept. 2002], lv denied 98 N.Y.2d 673, 746 N.Y.S.2d 462, 774 N.E.2d 227 [2002] ; People v. Roberts , 197 A.D.2d 867, 868, 602 N.Y.S.2d 475 [4th Dept. 1993], lv denied 82 N.Y.2d 901, 610 N.Y.S.2d 168, 632 N.E.2d 478 [1993] ). Insofar as defendant contends that the probative value of the testimony at issue was substantially outweighed by its prejudicial effect, he failed to preserve his contention for our review because he did not object to the testimony on that ground (see People v. Cullen , 110 A.D.3d 1474, 1475, 972 N.Y.S.2d 792 [4th Dept. 2013], affd 24 N.Y.3d 1014, 997 N.Y.S.2d 348, 21 N.E.3d 1009 [2014] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We reject defendant's contention that the court abused its discretion by admitting seven photographs of his body in evidence for the alleged purpose of showing that he did not sustain injury in the incident. Those photographs were relevant to disprove self-defense, which the People reasonably anticipated would be raised by defendant (see People v. Di Bella , 277 A.D.2d 699, 702, 715 N.Y.S.2d 777 [3d Dept. 2000], lv denied 96 N.Y.2d 758, 725 N.Y.S.2d 284, 748 N.E.2d 1080 [2001] ). Although defendant further contends that the court abused its discretion by admitting in evidence an eighth photograph depicting a "666" tattoo on his neck, defendant failed to preserve his contention for our review (see People v. Dickerson , 42 A.D.3d 228, 236-237, 837 N.Y.S.2d 101 [1st Dept. 2007], lv denied 9 N.Y.3d 960, 848 N.Y.S.2d 29, 878 N.E.2d 613 [2007] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We agree with defendant, however, that the court abused its discretion when it permitted the prosecutor to play for the jury a scene from the film, The Boondock Saints . The scene takes place inside a courtroom, where the protagonists threaten everyone with pistols. Some people in the scene, presumably those playing the jurors, watch in astonishment while ducking for cover. The protagonists make loud, self-aggrandizing statements, declaring themselves vigilantes tasked by God with bringing justice to the world (e.g. "Each day we will spill their blood till it rains down from the sky!"). For those who do not behave morally, the protagonists offer a message: "One day you will look behind you and you will see we three ... and we will send you to whichever God you wish." The protagonists put their guns to the back of the defendant's head while he is knelt on the floor in an execution-style pose. Gunfire erupts, and everyone runs out of the courthouse screaming.

The prosecutor's ostensible reason for playing that particular scene was to rebut defendant's testimony that he was coerced by his accomplice into participating in the murder and subsequently lying to the police. The relevance of that scene is that defendant posted quotations from it on social media two days after the victim's murder and one day before he gave the allegedly coerced statement to the police.

Although that scene from The Boondock Saints was relevant for that purpose, relevant evidence "may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury" ( People v. Scarola , 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [1988] ). Here, the prejudice created by playing that scene results not only from the possibility that the jury would perceive defendant's taste in movies to be an endorsement of violence. The violence in question was directed in part against a jury during a criminal trial, and thus the scene also likely affected the jury's objectivity. Moreover, the scene degrades the criminal justice system, and the jury system in particular, implying that the reasonable doubt legal standard is responsible for freeing murderers and that justice can only be accomplished by vigilantes. On the other hand, the scene had little probative value. Defendant never actually posted the video on social media; he only quoted from it. The prosecutor could simply have asked defendant on cross-examination whether the quote referenced a scene from a film in which vigilantes execute a criminal. Playing the scene served no purpose other than to prejudice the jury against defendant. Because the probative value of the scene from The Boondock Saints video was substantially outweighed by the danger that its admission would prejudice defendant or mislead the jury, the court abused its discretion in admitting it (see People v. Herman , 187 A.D.2d 1027, 1028, 590 N.Y.S.2d 619 [4th Dept. 1992] ; cf. Scarola , 71 N.Y.2d at 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 ).

Nevertheless, we conclude that the error is harmless. The evidence against defendant is overwhelming and there is no "significant probability" that the jury would have acquitted defendant but for the error ( People v. Crimmins , 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; see People v. Taylor , 148 A.D.3d 1607, 1608, 50 N.Y.S.3d 217 [4th Dept. 2017] ). There is no dispute that defendant participated in the victim's murder. Prior to trial, defendant gave two differing accounts of the murder but, in both versions, he acknowledged intentionally killing the...