People v. Richard

• Decision Date: 28 November 2018
• Docket Number: Ind. No. 4348/12,2014–05069
• Citation: 166 A.D.3d 1014,88 N.Y.S.3d 460
• Parties: The PEOPLE, etc., Respondent, v. Alvin RICHARD, Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1014
88 N.Y.S.3d 460

The PEOPLE, etc., Respondent,
v.
Alvin RICHARD, Appellant.

2014–05069
Ind. No. 4348/12

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

Argued—June 19, 2018
November 28, 2018

88 N.Y.S.3d 461

Paul Skip Laisure, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M. Harrington, J.), rendered May 8, 2014, convicting him of manslaughter in the first degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 15 years, to be followed by 5 years of postrelease supervision.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of 15 years, to be followed by 5 years of postrelease supervision, to a determinate term of imprisonment of 10 years, to be followed by 5 years of postrelease supervision; as so modified, the judgment is affirmed.

To the extent that the defendant contends that the People did not present legally sufficient evidence that the victim's death was reasonably foreseeable, that argument is unpreserved for appellate review because the defendant failed to move for a trial order of dismissal on the basis of that specific claim (see People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Villanueva, 136 A.D.3d 1068, 26 N.Y.S.3d 171 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of manslaughter in the first degree beyond a reasonable doubt (see People v. Gobardhan, 150 A.D.3d 882, 56 N.Y.S.3d 118 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

Viewing the record in the light most favorable to the defendant, we agree with the Supreme Court that there was no reasonable view of the evidence by which the jury could have found that the defendant

88 N.Y.S.3d 462

was justified in using deadly physical force because he reasonably believed that the victim was committing or attempting to commit a burglary (see Penal Law § 35.20[3] ; People v. Cox, 92 N.Y.2d 1002, 684 N.Y.S.2d 473, 707 N.E.2d 428 ; People v. Sadler, 153 A.D.3d 1285, 1286, 59 N.Y.S.3d 710 ; People v. Beckford, 49 A.D.3d 547, 548, 853 N.Y.S.2d 582 ). Accordingly, we agree with the court's denial of the defendant's request to instruct the jury on the defense of justification.

Moreover, the defendant was not deprived of the effective assistance of counsel based upon trial counsel's failure to request a justification charge pursuant to Penal Law § 35.30(4). Viewing the record in the light most favorable to the defendant, no reasonable view of the evidence would support a finding that the defendant used physical force to effect an arrest or to prevent an escape from custody (see Penal Law § 35.30[4] ; People v. Witherspoon, 147 A.D.3d 985, 47 N.Y.S.3d 391 ; People v. Albritton, 63 A.D.3d 749, 881 N.Y.S.2d 131 ; People v. Hayes, 51 A.D.3d 688, 858 N.Y.S.2d 242 ; People v. Davis, 293 A.D.2d 486, 739 N.Y.S.2d 635 ).

The sentence imposed was excessive to the extent indicated herein.

AUSTIN, J.P., DUFFY and CHRISTOPHER, JJ., concur.

I disagree with the majority's determination that the sentence of imprisonment of 15 years imposed upon the defendant's conviction of manslaughter in the first degree was excessive. The record reflects that the victim was the subject of a violent, unprovoked assault that ultimately resulted in his death. Therefore, I respectfully dissent from so much of the majority's determination as reduced the defendant's sentence, and vote to affirm the judgment of conviction.

The defendant, who was charged with murder in the second degree, was convicted of manslaughter in the first degree in connection with the death of Kevin Farmer. The evidence at trial established that on September 1, 2011, at approximately 3:00 a.m., Farmer mistakenly attempted to enter the defendant's apartment. Farmer's friend, Priscilla Hall, testified at trial that she had given Farmer the keys to her apartment in Brooklyn and asked him to go there to retrieve her purse while she stayed behind at her sister's house. Farmer had never been to Hall's apartment and mistakenly went to an apartment on the third floor, instead of Hall's apartment on the second floor, apartment 2E. Hall testified that Farmer called her and said that the key was not turning in the lock, and that he was on the third floor standing in front of apartment 3E. She ascertained that he was at the wrong apartment, and asked him to stay with her on the phone while he walked down the stairs to her apartment. Hall stated that...