People v. Valentin

• Decision Date: 07 May 2015
• Docket Number: 14221, 823/09
• Citation: 8 N.Y.S.3d 317,128 A.D.3d 428,2015 N.Y. Slip Op. 03914
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlos VALENTIN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 428
8 N.Y.S.3d 317
2015 N.Y. Slip Op. 03914

The PEOPLE of the State of New York, Respondent
v.
Carlos VALENTIN, Defendant–Appellant.

14221, 823/09

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

May 7, 2015.

8 N.Y.S.3d 318

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

Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), for respondent.

GONZALEZ, P.J., ACOSTA, SAXE, MANZANET–DANIELS, CLARK, JJ.

Opinion

128 A.D.3d 428

Judgment, Supreme Court, Bronx County (Robert A. Sackett, J.), rendered September 28, 2011, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him, as a second felony offender, to a term of 20 years, reversed, on the law, and the matter remanded for a new trial.

In charging the jury on the justification defense, the court erred when, over defendant's objection, it included the initial aggressor exception to the defense embodied in Penal Law § 35.15(1)(b). This concept, that defendant would not have been justified in using deadly physical force if he was the initial aggressor, was completely inapplicable to the facts of the case. Although the jury could have reasonably determined that defendant's use of deadly force was unjustified (where defendant used a gun against the deceased, who wielded a mop handle), it could not have reasonably found that defendant was the initial aggressor because the evidence does not support such a conclusion. There was no evidence that defendant was the first person in the fatal encounter to use or threaten the imminent use of deadly force, or any kind of force, for that matter. On the contrary, the evidence tended to indicate either that it was the deceased who first used force, by swinging a mop handle at defendant, or that defendant and the deceased used or threatened force simultaneously.

The dissent acknowledges the inconsistent testimony of Edward Hogan, a key prosecution witness, with regard to the sequence of the deceased swinging the mop handle and defendant withdrawing the gun from his jacket. Nevertheless, under no iteration of Hogan's description of the events can it be concluded that defendant withdrew the gun before the deceased swung the mop handle. At most, it can be said that defendant withdrew the

8 N.Y.S.3d 319

gun simultaneously with the deceased's attack. To find that defendant was the initial aggressor would require a finding that he withdrew the gun (and threatened to use it) before the deceased swung the mop handle, an inference that cannot logically flow from Hogan's (inconsistent) testimony that both events happened simultaneously. There is no “concurrent

128 A.D.3d 429

aggressor” exception to the defense of justification. Accordingly, the court's initial aggressor charge was improper.

This error may not be deemed harmless. Defendant's justification defense presented a close question of whether defendant had a reasonable basis for his use of deadly force, and the charging error could have affected the verdict because the jury might have concluded that defendant was the initial aggressor and, thus, not entitled to a justification defense. Contrary to the dissent, a mop handle swung at a person's head may constitute “deadly physical force,” defined as “physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00[11] ). “Depending on how it is used, even a normally innocuous item may constitute ‘deadly physical force’ ” (People v. Dodt, 61 N.Y.2d 408, 414, 474 N.Y.S.2d 441, 462 N.E.2d 1159 [1984] ). Under the circumstances of this case, a jury could reasonably conclude that the deceased used or threatened to use deadly physical force against defendant by swinging the mop handle at him (see id.; People v. Ozarowski, 38 N.Y.2d 481, 491 n. 3, 381 N.Y.S.2d 438, 344 N.E.2d 370 [1976] [baseball bat used to strike victim's head was a “dangerous instrument”] ) and that defendant reasonably believed he needed to use deadly physical force to defend himself (see Penal Law § 35.15[2] ).

Finally, although the evidence was far from overwhelming, the verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), and thus there is no basis for dismissing the indictment. In light of our remand for a new trial, we do not address defendant's remaining contentions.

All concur except SAXE, J. who dissents in a memorandum as follows:

SAXE, J. (dissenting).

I would affirm defendant's conviction for first-degree manslaughter.

Defendant was charged with murder in the second degree, attempted murder in the second degree, manslaughter in the first degree, attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, for the fatal shooting of Justin McWillis and the non-fatal shooting of Edward Hogan on January 18, 2009.

The People's evidence at trial about the shooting primarily came from Edward Hogan, who acknowledged that the incident was connected to an incident from the previous night.

Defendant's mother, Maria Rivera, owned the house at 1504 Vyse Avenue, and rented an apartment in the house to the family of Anthony Jones; the house was protected by a locked iron gate.

128 A.D.3d 430

A defense witness, Liliana Lara, who was also a tenant at 1504 Vyse Avenue, testified that she believed that the Jones family, like herself, had keys to the gate, but that Anthony Jones and his friends would regularly jump the gate to gain access to...