People v. Petty

CourtNew York Court of Appeals
Writing for the CourtG. Smith
Citation852 N.E.2d 1155,7 N.Y.3d 277
Decision Date05 July 2006
PartiesThe PEOPLE of the State of New York, Respondent, v. Jamal PETTY, Appellant.
852 N.E.2d 1155
7 N.Y.3d 277
The PEOPLE of the State of New York, Respondent,
v.
Jamal PETTY, Appellant.
Court of Appeals of New York.
July 5, 2006.

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COPYRIGHT MATERIAL OMITTED

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Legal Aid Society, Criminal Appeals Bureau, New York City (Natalie Rea and Laura R. Johnson of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Susan E. Baumgartner and Nancy D. Killian of counsel), for respondent.

OPINION OF THE COURT

G.B. SMITH, J.


The principal issue in this case is whether the trial court erred when, during its justification charge, it instructed the jury that the deceased victim's prior threats against defendant may be considered solely in determining defendant's state of mind and the reasonableness of his conduct. We conclude that the trial court erred when it did not instruct the jury that these prior threats may also be used in the jury's determination of who was the initial aggressor. For reasons set forth below, however, we conclude that the error was harmless and affirm.

Facts and Procedural History

On July 2, 1990, at approximately 11:30 P.M., defendant shot at Derrick Torrence twice, hitting him once in the back of the neck, and causing him to fall forward to the ground.1 No weapon was found on or near Torrence. On July 10, 1990, defendant turned himself in. By indictment filed July 31, 1990, defendant was charged with attempted murder in the second degree, assault in the first degree and related offenses. Four months after the shooting, Torrence died from complications related to his condition. By superseding indictment filed December 14, 1990, defendant was charged with murder in the second degree, manslaughter in the first degree and related offenses.

During the People's case-in-chief, two young women who were friends of both defendant and Torrence testified that shortly before the shooting, they saw the two on the grounds of the Mayor John Purroy Mitchel Houses in the Bronx. Both witnesses, who were aware of a feud between defendant and Torrence, also testified that the housing development's lights were on.

The first witness testified that shortly before the shooting, she spoke to and joked with Torrence who was wearing a tee shirt, pants and sneakers, but no coat. During this exchange, the witness did not notice a weapon on Torrence. After the exchange, the witness, who was on a bicycle, and Torrence went in opposite directions. Torrence headed in the direction

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of his home. Shortly thereafter, the witness heard someone shout a warning to Torrence. She then turned and saw defendant approaching Torrence. According to the witness, Torrence turned toward her, looking scared, and made a motion with his hands toward his waist as if he was preparing to run. This witness could not see whether Torrence placed his hand in his waist. Nor did she see what Torrence was doing right before defendant fired, as her attention was primarily on defendant. The witness further testified that she was about 12 feet from Torrence when defendant fired the gun.

The second witness was seated on a bench with friends about 30 feet from where she saw defendant approach Torrence. Because her focus was primarily on defendant, this witness likewise did not see whether Torrence reached for anything. However, she did testify that when defendant pulled out his gun, Torrence turned away. She further testified that she could see Torrence's hands right before the shooting and that Torrence did not threaten defendant, and after the shooting, defendant approached her with gun in hand and asked whether any of Torrence's friends were in the area. Both young women estimated that defendant came to within five to eight feet of Torrence before firing the two shots. Further, the medical examiner testified that because the bullet that hit Torrence entered the back of his neck, he could not have been facing defendant at the time of the shooting.2

During defendant's case-in-chief, defendant admitted shooting and causing the death of Torrence. However, defendant claimed that the shooting was justified because threats and violence by Torrence and his friends, made and carried out prior to the date of the shooting, led to defendant's reasonable belief that when Torrence reached toward his waist on the night of July 2, 1990, he was going to draw a weapon in order to kill defendant.

Defendant, his brother and two friends testified that, over an 11-day period starting on June 21, 1990, Torrence repeatedly threatened to kill defendant. According to the testimony of these four individuals, on June 21, 1990, defendant and Torrence played a $2 dice game which Torrence lost. When Torrence refused to pay, he and defendant got into a fistfight which defendant won. When defendant and Torrence were separated, Torrence directed a number of statements at defendant. Most of these statements were either future threats to kill defendant or angry words that would not constitute a threat of harm.

Defendant and other defense witnesses further testified that on June 22, 1990, Torrence and his friends attacked defendant and his friends. During this fight, a friend of Torrence shot one of defendant's friends in the back of his shoulder. According to defendant and two other defense witnesses, Torrence directed his friend to shoot defendant during the fight, but the shooter missed.

During his testimony, defendant also recounted a June 29, 1990 conversation he had with the girlfriend of the shooter in the June 22 melee. According to defendant, the woman told him that on June 28, 1990, she, along with Torrence and her then-boyfriend, took part in a three-way telephone conversation in which Torrence stated that he was coming to kill defendant. When counsel asked defendant, "What ... effect did this have on your state of mind," the People objected. The trial court sustained the objection on the ground that the proposed testimony was irrelevant and stated that the only issue of relevance was "whether or not at the instance

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in question on July 2nd, ... defendant had a reasonable belief as to certain conduct that it may or may not be alleged that ... defendant did."

Regarding the shooting at issue here, defendant testified that he was visiting a friend who was aware of the animus between defendant and Torrence. At about 11:00 P.M., defendant decided to leave his friend's home and see his girlfriend and their two-year-old daughter. His friend gave him an illegal .38 caliber handgun for protection. While walking outside, defendant came upon Torrence who stood motionless with his hands at his sides, some 40 to 50 feet away. Torrence "turned his body" and feet away, but defendant claimed that he could see the upper half of Torrence's body as well as both of his hands. Noting that no words were exchanged between the two men, defendant testified that Torrence (who was left-handed) "just reached" toward his waistband with his right hand. Defendant, who never saw a gun or other weapon on Torrence, claimed that, as a result of the "reaching" gesture, he felt that his life was in danger. Defendant fired his gun twice, but claimed that he did not aim or look where he was firing, and did not know whether Torrence was facing him or not.

The defense also sought to call the female participant in the June 28 three-way telephone conversation who would testify that during the conversation, her then-boyfriend said the bullet...

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87 practice notes
  • People v. Clark, 2011-00191
    • United States
    • New York Supreme Court Appellate Division
    • April 29, 2015
    ...Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 ). This rule encompasses the defense of justification (see People v. Petty, 7 N.Y.3d 277, 284, 819 N.Y.S.2d 684, 852 N.E.2d 1155 ; People v. McManus, 67 N.Y.2d 541, 549, 505 N.Y.S.2d 43, 496 N.E.2d 202 ; People v. Jenkins, 93 A.D.......
  • Bonilla v. Lee, No. 13 Civ. 3725(JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 9, 2014
    ...the defense of justification is unavailable if the defendant is the initial aggressor in the encounter with the victim. People v. Petty, 7 N.Y.3d 277, 819 N.Y.S.2d 684, 852 N.E.2d 1155, 1161 (2006); People v. Morales, 11 A.D.3d 259, 782 N.Y.S.2d 437, 438 (2004). No reasonable view of the ev......
  • Bonilla v. Lee, No. 13 Civ. 3725JGK.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 9, 2014
    ...the defense of justification is unavailable if the defendant is the initial aggressor in the encounter with the victim. People v. Petty, 7 N.Y.3d 277, 819 N.Y.S.2d 684, 852 N.E.2d 1155, 1161 (2006) ; People v. Morales, 11 A.D.3d 259, 782 N.Y.S.2d 437, 438 (2004). No reasonable view of the e......
  • People v. Thomas, 1016
    • United States
    • New York Supreme Court Appellate Division
    • November 9, 2018
    ...committing or attempting to commit a kidnapping of defendant's girlfriend (see Penal Law § 35.15[2][b] ; see generally People v. Petty , 7 N.Y.3d 277, 284–285, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006] ; People v. Sadler , 153 A.D.3d 1285, 1286, 59 N.Y.S.3d 710 [2d Dept. 2017], lv denied 30 ......
  • Request a trial to view additional results
87 cases
  • People v. Clark, 2011-00191
    • United States
    • New York Supreme Court Appellate Division
    • April 29, 2015
    ...Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 ). This rule encompasses the defense of justification (see People v. Petty, 7 N.Y.3d 277, 284, 819 N.Y.S.2d 684, 852 N.E.2d 1155 ; People v. McManus, 67 N.Y.2d 541, 549, 505 N.Y.S.2d 43, 496 N.E.2d 202 ; People v. Jenkins, 93 A.D.......
  • Bonilla v. Lee, No. 13 Civ. 3725(JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 9, 2014
    ...the defense of justification is unavailable if the defendant is the initial aggressor in the encounter with the victim. People v. Petty, 7 N.Y.3d 277, 819 N.Y.S.2d 684, 852 N.E.2d 1155, 1161 (2006); People v. Morales, 11 A.D.3d 259, 782 N.Y.S.2d 437, 438 (2004). No reasonable view of the ev......
  • Bonilla v. Lee, No. 13 Civ. 3725JGK.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 9, 2014
    ...the defense of justification is unavailable if the defendant is the initial aggressor in the encounter with the victim. People v. Petty, 7 N.Y.3d 277, 819 N.Y.S.2d 684, 852 N.E.2d 1155, 1161 (2006) ; People v. Morales, 11 A.D.3d 259, 782 N.Y.S.2d 437, 438 (2004). No reasonable view of the e......
  • People v. Thomas, 1016
    • United States
    • New York Supreme Court Appellate Division
    • November 9, 2018
    ...committing or attempting to commit a kidnapping of defendant's girlfriend (see Penal Law § 35.15[2][b] ; see generally People v. Petty , 7 N.Y.3d 277, 284–285, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006] ; People v. Sadler , 153 A.D.3d 1285, 1286, 59 N.Y.S.3d 710 [2d Dept. 2017], lv denied 30 ......
  • Request a trial to view additional results

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