People v. Johnson

• Decision Date: 18 March 2022
• Docket Number: 1104,KA 15-01249
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas JOHNSON, Also Known as Thomas Johnson, III, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1722
164 N.Y.S.3d 760

The PEOPLE of the State of New York, Respondent,
v.
Thomas JOHNSON, Also Known as Thomas Johnson, III, Defendant-Appellant.

1104
KA 15-01249

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

Entered: March 18, 2022

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, aggravated murder ( Penal Law § 125.26 [1] [a] [i] ; [b]) for intentionally killing a Rochester city police officer in the line of duty. Pretrial proceedings were conducted in County Court (Argento, J.), and the case was transferred to Supreme Court (Moran, J.) for trial. At trial, defendant asked Supreme Court to instruct the jury that, in order to secure a conviction for aggravated murder as charged in the indictment, the People were obligated to prove that the victim-officer was lawfully performing his official duties at the time of his murder. Supreme Court refused to give such an instruction; indeed, Supreme Court explicitly instructed the jury not to consider the lawfulness of the victim-officer's actions at the time of his murder. We now affirm.

Viewing the evidence in light of the elements of aggravated murder as charged to the jury (see People v. Kancharla , 23 N.Y.3d 294, 302-303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ; People v. Johnson , 10 N.Y.3d 875, 878, 860 N.Y.S.2d 762, 890 N.E.2d 877 [2008] ; People v. Romero , 7 N.Y.3d 633, 644 n. 2, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ), we conclude that the verdict convicting defendant of that crime 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] ). Indeed, because Supreme Court did not submit the issue of lawfulness to the jury, the guilty verdict on the aggravated murder charge cannot, as a matter of law, be against the weight of the evidence on the ground that the People failed to establish that the victim-officer was lawfully performing his official duties at the time of his murder (see People v. Manners , 196 A.D.3d 1125, 1126, 149 N.Y.S.3d 743 [4th Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 427, 175 N.E.3d 452 [2021] ). We note parenthetically that, contrary to defendant's assumption, the proper remedy for a preserved instructional error is a new trial, not weight of the evidence review conducted by reference to the correct jury charge (see e.g.

164 N.Y.S.3d 762

People v. Downey , 158 A.D.3d 1198, 1198-1200, 71 N.Y.S.3d 235 [4th Dept. 2018] ; People v. Pritchard , 149 A.D.3d 1479, 1479-1480, 52 N.Y.S.3d 595 [4th Dept. 2017] ).

Contrary to defendant's further contention, Supreme Court properly refused to instruct the jury that, in order to secure a conviction for aggravated murder as charged in the indictment, the People were required to prove that the victim-officer was lawfully performing his official duties at the time of his murder. The governing statute provides that a person commits aggravated murder by, inter alia, intentionally killing a police officer "engaged in the course of performing his or her official duties" ( Penal Law § 125.26 [1] [a] [i] ). There is no merit to defendant's contention that the term "official duties" in this context necessarily encompasses only official duties performed lawfully (see People v. Glanda , 18 A.D.3d 956, 958, 794...