People v. Rivera

• Decision Date: 27 April 2010
• Citation: 72 A.D.3d 576,900 N.Y.S.2d 31
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose RIVERA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 31
72 A.D.3d 576

The PEOPLE of the State of New York, Respondent,
v.
Jose RIVERA, Defendant-Appellant.

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

April 27, 2010.

900 N.Y.S.2d 33

Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.

SAXE, J.P., SWEENY, MOSKOWITZ, ACOSTA, RICHTER, JJ.

72 A.D.3d 577

Judgment, Supreme Court, Bronx County (Thomas Farber, J.), rendered May 16, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 15 years, to be followed by five years of post release supervision, affirmed.

This crime resulted in a man's death. However, the jury acquitted defendant of homicide charges, only convicting him of criminal possession of a weapon in the second degree. Defendant's appeal centers on two related issues: (1) the lack of language in the charge that justification negated the unlawful intent component of criminal possession of a weapon in the second degree; and (2) the court's refusal to submit criminal possession of a weapon in the fourth degree as a lesser included offense. For the foregoing reasons, we reject defendant's position. First, defendant did not request a justification charge with respect to the count for second degree possession and accordingly has failed to preserve this issue. Even if defense counsel had requested a justification charge in connection with criminal possession of a weapon in the second degree, it is questionable whether the court could have granted that request ( see People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 [1986] ["because possession of a weapon does not involve the use of physical force, there are no circumstances when justification can be a defense to the crime of criminal possession of a weapon" (citations omitted) ] ). More important, no reasonable view of the evidence supported anything other than defendant's possession of the weapon with intent to use it unlawfully.

The crime occurred after midnight on August 2, 2003. The victim was Owen Ferguson a.k.a. Danny Dred. Yolanda Jenkins testified for the prosecution. Apparently, Jenkins and

72 A.D.3d 578

the victim were planning to attend a party and had met in front of the building where she lived on Sherman Avenue. Defendant lived in the same building. Jenkins said that she and Ferguson noticed defendant enter a restaurant across the street. At some point, a friend, Ebony Williams, joined them.

Defendant owed Ferguson money from a drug purchase and Ferguson went into the restaurant presumably to talk to him about the drug debt. Jenkins observed Ferguson and defendant gesturing in conversation. Ferguson exited the restaurant about five minutes later. Defendant pulled out a black gun and shot him three times. Jenkins testified that the victim had not turned around to face defendant, although in her grand jury testimony, Jenkins indicated that the victim had turned towards defendant whereupon defendant took out his gun. Jenkins testified that the victim did not have a gun.

Both Jenkins and Ebony Williams fled. According to Jenkins, defendant allegedly followed Jenkins into a doorway, held the gun to her head and threatened to kill her if she said anything. The defendant then ran into the building where they both lived.

Ferguson bled to death from the gunshot wounds. Medical testimony indicated that Ferguson had been shot four to five times, but from more than 18 to 30 inches away.

900 N.Y.S.2d 34

Defendant was arrested later that night. At the precinct, after a detective read him his Miranda rights, defendant wrote and signed a statement. In that statement defendant explained:

"I, Jose Rivera, was read my Miranda Warnings by Detective Rodriguez. I am making this statement voluntarily. I, Jose Rivera, used to sell weed for Danny Dred [Ferguson]. I had owed him eighty dollars for two days. Danny Dred was looking for me. He was going around asking people for me. I didn't have the money, so I stood [ sic ] home last night. I came outside because I got forty dollars from my friend about 10 PM or 11 PM, I was walking with my friend and I seen Danny with his girl. He seen me walking. So, he told his girl something. She went to the basement, came back out, handed him something. So, I got scared, because I thought he had a knife or gun. I went into the chicken place because I felt safer there with people and cameras. As I go in the food spot, I sat by the crowd. As I looked through the window, I seen Danny approaching the door. So, my friend hand me the pistol from the side. Danny came in with his hand in his pocket. He kept yelling and screaming at me. I told him, I had forty dollars. He said, fuck that. He want his money now. Kept reaching in his pocket. He told me come out the store. He didn't know I was armed. He kept screaming at me, with his hand in his pocket, come out the store now. As he walked and I came

72 A.D.3d 579

behind him, as soon as we walked out, he reached again. I got so scared, I fired three shots and ran home. I didn't want this to happen. But his actions put me in fear of being hurt and I reacted" (emphasis added).

In defendant's videotaped confession he further explained that his friend gave him the gun at the same time he saw Jenkins give Ferguson "something."

Ebony Williams, testifying for the defense, gave a different account of the crime. She started out the night smoking marijuana with defendant, his girlfriend and Jenkins in apartment 4B in the Sherman Avenue building. She claimed this was her own apartment. Williams testified that Jenkins called the victim and told him to get more marijuana. Then Jenkins left to pick it up. After a while, Williams left the apartment with defendant's girlfriend to find Jenkins.

Williams testified that later she saw defendant with another man named Eric who indicated that he and defendant were going to get something to eat. She then saw Jenkins talking with Ferguson. Jenkins joined Williams. The two women heard shots, but could not see where the shots came from. Together, they ran into the building, where they remained for 25 minutes. After that, they went together to apartment 4B. Williams testified that she did not see defendant with a gun.

The charges against defendant included murder in the second degree. The court submitted manslaughter in the first degree as a lesser included offense of intentional murder. On the homicide counts, the court submitted a justification charge. The court informed counsel that it would charge criminal possession of a weapon in the second degree, for which culpability was independent from the homicide charges, but denied defendant's application to submit criminal possession of a weapon in the fourth degree as a lesser included offense. Significantly, defendant did not request a justification charge with respect to criminal possession of a weapon in the second degree. And, when the court submitted that count to the jury, it did not provide a justification charge.

900 N.Y.S.2d 35

As applicable at the time of the crime, criminal possession of a weapon in the second degree requires, inter alia, that the perpetrator have the intent to use the firearm unlawfully against another (Penal Law § 265.03). Defendant argues that he possessed the gun only in self defense and therefore lacked the requisite intent to support second degree possession of a weapon. Lacking intent to use a firearm unlawfully against another, he argues he merely possessed a firearm which would render him guilty only of fourth degree possession (

72 A.D.3d 580

Penal Law § 265.01[1] [possessing any firearm] ). A trial court need only submit a lesser offense to the jury when there is a reasonable view of the evidence to support that finding ( see People v. Negron, 91 N.Y.2d 788, 792, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ). Contrary to defendant's arguments, no reasonable view of the evidence supported submission of the charge of criminal possession of a weapon in the fourth degree as a lesser included offense. First, defendant admits in his confession that he followed the victim out of the restaurant and shot the victim in the back at least three times. Jenkins' trial testimony also shows that the victim had not turned around to face defendant and that defendant shot the victim in the back. This precludes the possibility that defendant used the gun only in self-defense.

Further, the gun was indisputably loaded. Defendant stated that his friend handed him the gun as he saw Ferguson approach the door. Moreover, while defendant did not have the gun until his friend handed it to him in the restaurant, the two had been together earlier in the evening. Also, defendant had been hanging out earlier with Ferguson's girlfriend and presumably knew that she had asked Ferguson to obtain more marijuana for them. Thus, defendant knew he had a good chance of running into Ferguson and that a loaded gun was within easy reach. Defendant was aware of these circumstances before he allegedly saw the victim's girlfriend hand "something" to the victim. This sequence of events negates any reasonable possibility that defendant could have been guilty of merely possessing the gun. ( See People v. Marrero, 187 A.D.2d 281, 281, 589 N.Y.S.2d 869 [1992], lv. denied 81 N.Y.2d 791, 594 N.Y.S.2d 737, 610 N.E.2d 410 [1993] [no reasonable view of the evidence could establish that defendant possessed a pistol that was not loaded] ).

Regardless, even if, as the dissent argues, defendant did not have the intent to use the gun unlawfully at the precise moment his friend handed it to him, there is no reasonable view of the evidence that he lacked such intent when the victim left the restaurant and defendant followed him outside. Notably, in his statement to the police, defendant never indicated that...