People v. Simmons

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: SPAIN
• Citation: People v. Simmons, 2013 NY Slip Op 7215, 111 A.D.3d 975, 974 N.Y.S.2d 185 (N.Y. App. Div. 2013)
• Decision Date: 07 November 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian SIMMONS, Appellant.

111 A.D.3d 975

974 N.Y.S.2d 185

2013 N.Y. Slip Op. 07215

The PEOPLE of the State of New York, Respondent,

v.Brian SIMMONS, Appellant.

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

Nov. 7, 2013.

Mark Diamond, Albany, for appellant, and appellant pro se.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and SPAIN, JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered May 11, 2011, upon a verdict convicting defendant of the crime of assault in the first degree.

Shortly after midnight on December 8, 2009, defendant shot Joel Winkler Jr. with a shotgun as Winkler stood unarmed in the doorway to the garage attached to defendant's home in the Town of Rotterdam, Schenectady County. Winkler was in a relationship of several months with defendant's niece by marriage, Erika Barrett, who had been living with defendant and his wife, Penny Simmons, since September 2009, when Barrett turned age 18. While initially defendant and Simmons got along with Winkler, who picked up Barrett daily at the house, tensions developed over, among other things, defendant's excessive daily alcohol consumption and behavior or remarks to Barrett and Winkler, as well as defendant and Simmons' open disapproval of Winkler. On the night of the shooting, defendant woke up Barrett and told her that she had to move out within seven days because she was causing too much stress; she packed her things and called Winkler to come and pick her up, crying hysterically. A heated argument erupted in the house and then in the garage between Barrett and Simmons, who called Barrett's mother to come and get her; Simmons physically restrained Barrett, refusing to let her leave with Winkler, who had pulled his car into the driveway. Winkler waited, observing their heated arguments, then exited his car and approached the garage door and told Barrett she could leave; he tried to persuade Simmons to let Barrett go with him, arguing with Simmons about Barrett's right to leave.

According to Winkler and Barrett, Simmons pulled Barrett by the shoulders as she tried to leave, and blocked her exit; Simmons then pushed and struggled with Winkler, who did not fight back. Winkler and Barrett testified that defendant stood silently in the rear of the garage and never moved or provided a warning until he picked up his shotgun, walked toward Winkler and shot him at close range in the upper chest near his left shoulder only inches from his heart, stating, “Let's see if you ever step foot into my house again.” Winkler testified that when he saw defendant with a shotgun, he turned to his right to leave, and was shot by defendant. Simmons, who called 911 moments before the shooting, testified that she told Winkler to leave and he pushed and shoved her and forced his arm up to her throat, choking her, until defendant pushed Winkler off her and struggled with him. Defendant testified that he tried to stay out of the conflict until Winkler choked his wife and slammed her against a wall, at which point he claims he fought with Winkler, who hit him causing him to fall down; only then did defendant get his gun, load it, scream at Winkler to get out of the house, warn him he was going to shoot and to get his hands off his wife, and then he intentionally shot Winkler.

Defendant was indicted for the crime of intentional assault in the first degree (intent to cause serious physical injury with a deadly weapon). At trial, the disputed issues were whether the shooting had been justified and whether defendant's alleged intoxication or other facts negated a finding of intent. The jury was instructed on the justification defense but convicted defendant as charged. His motion to set aside the verdict was denied, and a prison sentence of 10 years with three years of postrelease supervision was imposed. Defendant now appeals.

Initially, defendant's challenge to the legal sufficiency of the evidence disproving his justification defense was not preserved for our review, as it was not specifically raised in his motion to dismiss at the close of the People's proof,¹ which defendant did not renew after he presented testimony and the proof was closed ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008];People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006];People v. Gray, 86 N.Y.2d 10, 19–22, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Further, while defendant raised this challenge in his CPL 330.30(1) motion to set aside the verdict, such a motion can only be granted for issues that, if raised on appeal, “required a reversal ... as matter of law” ( CPL 330.30[1] ). A legal sufficiency challenge that has not been properly preserved at trial is not an issue that would require reversal as a matter of law and, therefore, is not a proper basis for CPL 330.30(1) relief, which was properly denied ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001];People v. Sudler, 75 A.D.3d 901, 904, 906 N.Y.S.2d 373 [2010],lv. denied15 N.Y.3d 956, 917 N.Y.S.2d 116, 942 N.E.2d 327 [2010];People v. Thomas, 38 A.D.3d 1134, 1136, 832 N.Y.S.2d 688 [2007],lv. denied9 N.Y.3d 852, 840 N.Y.S.2d 778, 872 N.E.2d 891 [2007] ).

Turning to defendant's challenge to the verdict as against the weight of the evidence, we necessarily review the sufficiency of the evidence of each element ( see People v. Johnson, 107 A.D.3d 1161, 1163 n. 2, 967 N.Y.S.2d 217 [2013],lv. denied21 N.Y.3d 1075 [2013] ). Even if a different verdict would have been reasonable, upon weighing the evidence and conflicting accounts of the shooting in a neutral light and according deference to the jury's first-hand credibility assessments, we find that the jury was warranted in finding beyond a reasonable doubt that defendant was not justified in using deadly force and had acted with the requisite intent, and in finding him guilty as charged ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];People v. Romero, 7 N.Y.3d 633, 636, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006];see alsoPenal Law §§ 25.00[1]; 35.00). Defendant's contention that the evidence established that his actions were justified is based on a mischaracterization of the trial testimony, particularly that of Winkler and Barrett, and reliance upon Simmons' and defendant's accounts, which the jury was entitled to reject.

The jury was charged that the applicable justification defense required that defendant, as a person in possession of his home/dwelling, “reasonably believe[d] that another person [—Winkler—] [was] committing or attempting to commit a burglary of such dwelling,” entitling him to use “deadly physical force upon such person” if he “reasonably believe[d] such to be necessary to prevent or terminate the ... burglary” (Penal Law § 35.20[3]; seePenal Law § 35.15[2][c]; ²People v. Cox, 92 N.Y.2d 1002, 1004, 684 N.Y.S.2d 473, 707 N.E.2d 428 [1998] ). This inquiry involves a subjective and objective element, i.e., it focuses on the defendant and the circumstances he or she confronted at the time of the shooting, as well as “ ‘what a reasonable person in those circumstances and having defendant's background and experiences would conclude’ ” ( People v. DiGuglielmo, 75 A.D.3d 206, 215, 902 N.Y.S.2d 131 [2010],affd.17 N.Y.3d 771, 929 N.Y.S.2d 74, 952 N.E.2d 1068 [2011], quoting People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21 [1990];see People v. Fisher, 89 A.D.3d 1135, 1137, 932 N.Y.S.2d 218 [2011],lv. denied18 N.Y.3d 883, 939 N.Y.S.2d 752, 963 N.E.2d 129 [2012] ).

It was not disputed that Winkler had been to defendant's home many times in recent weeks to pick up Barrett and that, on the night of the shooting, defendant and Simmons were aware that Winkler came in response to Barrett's phone call requesting that he pick her up at that late hour. The testimony of Winkler and Barrett established that it was Barrett who opened the garage door in her effort to leave; Winkler did not hit, push, choke or initiate any contact with Simmons and had no physical contact or words with defendant. Winkler only came to the door to get Barrett and did not attempt to enter the home; Winkler was pulled into the garage at most one foot during the struggle, while Barrett was holding his arm and both were being pushed or pulled by Simmons in her effort to prevent Barrett from leaving. They further testified that, without warning, defendant shot Winkler, who never suggested he had a weapon, as Winkler turned in the doorway to leave, about an arm's length from Simmons. Simmons' and defendant's accounts of the incident—in which Winkler allegedly assaulted and choked Simmons, prompting defendant's intervention and struggle with Winkler and warning that he would shoot—were not more believable or particularly credible. Simmons and defendant did not report any injuries to responding police, instead producing pictures taken days later. Defendant's testimony that he feared Winkler because Winkler had threatened to kill him on a previous occasion, after defendant made crude comments to Barrett, was easily discredited by defendant's own testimony reflecting that he did not take Winkler's remarks seriously; other testimony also supported the conclusion that, in context, Winkler's earlier remarks—“I killed people for less”—would not have instilled fear in any reasonable person. Indeed, defendant and Simmons never reported the incident to the police, continued to allow Winkler to pick up and see Barrett daily, and there was no credible testimony that this remark caused them to fear him.

Defendant's own testimony undermined his justification defense, reflecting that he was mad at Winkler and wanted him to leave without Barrett, and not that he feared Winkler or believed he was attempting to burglarize his home. Indeed, when asked why he did not fire a...