People v. Kolb
| Citation | 499 N.Y.S.2d 447,118 A.D.2d 590 |
| Parties | The PEOPLE, etc., Respondent, v. Edward KOLB, Appellant. |
| Decision Date | 03 March 1986 |
| Court | New York Supreme Court — Appellate Division |
Dominic J. Sichenzia, Garden City, for appellant.
Patrick Henry, Dist. Atty., Riverhead (Jeffrey D. Weeks, of counsel), for respondent.
Before LAZER, J.P., and MANGANO, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered April 10, 1984, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Judgment affirmed.
The evidence indicated that, after the codefendant Michael Kolb had assaulted the victim with a baseball bat and was in the process of administering a further beating, the defendant came up to him and stabbed him. As Officer Maguire approached the victim, the victim said, . He then pulled his left arm from across his stomach revealing his intestines laying on his stomach. When Maguire asked who did the stabbing, the victim said . Later that same morning the victim died in a hospital. His beating with the bat had been so severe that his blood would not clot. Medical testimony attributed the death to the stab wound. We find that, under the circumstances, the statement made by the victim was admissible in evidence at the trial as a dying declaration. It was made in extremis, under a sense of impending death, with no hope of recovery.
The defendant finds fault with the court's charge on justification and the duty to retreat, stating that there was a failure to explain properly the duty of the prosecution to demonstrate beyond a reasonable doubt that a defendant has a duty to retreat only if he knows he can retreat with complete safety. During the joint trial of the defendant and his codefendant, neither one raised an objection to the charge or requested that the court give any supplemental instructions. Having failed to do this, any error in this regard has not been preserved for appellate review (CPL 470.05[2]; see, People v. Swinson, 111 A.D.2d 275, 489 N.Y.S.2d 111).
In any event, the trial court specifically charged the jury that a defendant has a duty to retreat "if he knows that he can [do so] with complete safety to himself and others", and that the People must disprove the defense of justification beyond a reasonable...
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...the issue for our review (see, CPL 470.05 [2]; People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Kolb, 118 A.D.2d 590, 591, 499 N.Y.S.2d 447, lv. denied 67 N.Y.2d 945, 502 N.Y.S.2d 1038, 494 N.E.2d 123). Moreover, the comments regarding Henry's testimony "constitu......
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People v. Kolb
...upon a jury verdict, and imposing sentence. Judgment affirmed. As we held in the case of the defendant's brother (see, People v. Kolb, App.Div., 499 N.Y.S.2d 447 [decided herewith] ), the statements made by the victim shortly before his demise come within the dying declaration exception to ......
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...or requests for additional instructions (see, CPL 470.05[2]; People v. Flores, 139 A.D.2d 525, 526, 526 N.Y.S.2d 621; People v. Kolb, 118 A.D.2d 590, 591, 499 N.Y.S.2d 447, lv. denied, 67 N.Y.2d 945, 502 N.Y.S.2d 1038, 494 N.E.2d We have examined defendant's remaining points, including his ......
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People v. Stoll
...summation challenged on this appeal. The issue is therefore not preserved for appellate review (CPL 470.05[2]; People v. Kolb, 118 A.D.2d 590, 591, 499 N.Y.S.2d 447 app. den. 67 N.Y.2d 945, 502 N.Y.S.2d 1038, 494 N.E.2d 123). While some of the prosecutor's remarks were intemperate and he wa......